Part IX, Subpart ii, Chapter 2, Section BDetermining Disability, Unemployability, and Marginal Employment for Pension

Revised December 13, 2005

IX.ii.2.B.1.a#Ability to Retain Employment

The ability to retain employment once it is secured is a necessary element of employability. This ability is reflected in sustained performance, as contrasted with temporary or sporadic work.

IX.ii.2.B.1.b#When Unemployability Is Established

Unemployability 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 factors.

IX.ii.2.B.1.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.

IX.ii.2.B.1.d#Ability to Secure Employment

Ability to secure employment refers to the Veteran’s success in obtaining work of the type the Veteran is capable of performing and that is available in their community. Note: The type and amount of evidence needed to establish that the Veteran has made reasonable efforts to secure employment will vary with the facts of the individual case.

IX.ii.2.B.1.e#Evidence Required to Establish Unemployability

In many instances, the Veteran’s 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 instances, 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.

IX.ii.2.B.1.f#Making Unemployability Decisions

Both the degree of disability and the Veteran’s age 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 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 employability 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.

2Factors to Consider When Determining Unemployability

This topic contains information on the factors to consider when determining unemployability, including

• inability to perform household duties
• moderate progression of disability
• reaching retirement age
• character and behavior disorders
• offenses against society, and
• loss of industry in the community.

Revised December 13, 2005

IX.ii.2.B.2.a#Inability to Perform Household Duties

A Veteran whose sole employment consists of performing household duties may qualify as unemployable, if the Veteran is no longer able to perform the principal household duties without substantial help.

IX.ii.2.B.2.b#Moderate Progression of Disability

The 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 proper 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.

IX.ii.2.B.2.c#Reaching Retirement Age

Do not use the discontinuance of work upon reaching mandatory or optional retirement age as the sole reason for considering a Veteran to be unemployable. The determinative factors of unemployability are whether the Veteran’s disability and age prevent the Veteran from obtaining another position. Steady employment over a long period is ordinarily an indication of the Veteran’s 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.

IX.ii.2.B.2.d#Character and Behavior Disorders

A permanent 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 unemployability would be in order.

IX.ii.2.B.2.e#Offenses Against Society

If 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 individual’s disability, which removes the individual from 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 Veteran’s unemployment is due to removal from a work-possible environment for an offense against society, rather than a personality disorder.

IX.ii.2.B.2.f#Loss of Industry in the Community

The fact that an industry closes or is removed from the community where the Veteran resides, resulting in the loss of the Veteran’s job, may have a bearing on whether the Veteran’s disability prevents further employment. Do not use the loss of industry as the sole basis for a finding of either employability or unemployability.

3Determining Marginal Employment

This topic contains information on determining marginal employment, including

• qualifying criteria for marginal employment
• exceptions to the qualifying criteria for marginal employment, and
• factors pertinent to the issue of marginal employment.

Revised December 13, 2005

IX.ii.2.B.3.a#Qualifying Criteria for Marginal Employment

Marginal employment exists if, by reason of age and disability, the Veteran

• works less than one-half the 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).

IX.ii.2.B.3.b#Exceptions to the Qualifying Criteria for Marginal Employment

In many areas there are 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 occupation 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.

IX.ii.2.B.3.c#Factors Pertinent to the Issue of Marginal Employment

Consider the following factors when determining whether a Veteran is marginally employed:

• the Veteran’s prior work history and earnings, compared to the present, which may be related to and reflect the extent of the Veteran’s disability
• whether there has been a marked reduction of earnings, which may indicate a comparable decrease in mental or physical capabilities
• the established wage for a particular type of job in the community
• the opportunity for employment in the community, and
• the nature of the Veteran’s disabilities, in relation to the work for which the Veteran is qualified by experience, education, or training.

Note: Do not regard any single factor, in itself, as determinative.

4Determining Unemployability or Marginal Employment of Farmers

This topic contains information on determining the unemployability or marginal employment of farmers, including

• computing the net return from a farm
• considering
  • farm size
  • supplementation of farm income prior to disablement
  • the type of work, and
  • past work history
• comparing the Veteran’s income and hours of work with those of other farmers, and
• considering the Veteran’s supervision of a farm.

Revised December 13, 2005

IX.ii.2.B.4.a#Computing the Net Return From a Farm

In computing the net return from a farm operation when members of a Veteran’s family work without pay, deduct the reasonable value of such labor from the farm’s total net return to determine how much of the income results from the Veteran’s own contribution of labor or supervision. Important: Use this procedure for unemployability purposes only , and not to determine annual income.

IX.ii.2.B.4.b#Considering Farm Size

Many 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 only marginally employed. Do not base a denial solely on the fact that the Veteran never operated a farm on a large scale.

IX.ii.2.B.4.c#Considering Supplementation of Farm Income Prior to Disablement

Consider whether the Veteran supplemented farm income by working as a hired laborer for others before becoming disabled and whether, because of physical impairment, this source of income is no longer available.

IX.ii.2.B.4.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 limit the scope of farm work that may be performed.

IX.ii.2.B.4.e#Considering Past Work History

Consider whether the Veteran was required by age or disability to change from some other type of full-time employment to a marginal farming operation.

IX.ii.2.B.4.f#Comparing the Veteran’s Income and Hours of Work With Those of Other Farmers

If necessary, compare the Veteran’s 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.

IX.ii.2.B.4.g#Considering the Veteran’s Supervision of a Farm

Do not consider the fact 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.

5Obtaining Evidence of Disability

This topic contains information on obtaining evidence of disability, including

• obtaining Social Security Disability (SSD) records, and
• requesting evidence of unemployability concurrently with a request for examination.

Revised December 13, 2005

IX.ii.2.B.5.a#Obtaining SSD Records

Obtain and consider complete copies of Social Security Administration (SSA) records used in the SSA determination of disability if

• the available evidence is insufficient to award pension benefits, and
• the record shows that the Veteran is receiving Social Security benefits because of disability.

Reference: For more information on requesting SSA information, see M21-1, Part III, Subpart ii, 1.B.

IX.ii.2.B.5.b#Requesting Evidence of Unemployability Concurrently With a Request for Examination

If 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.”

6Determining Permanent and Total Disability

This topic contains information on determining permanent and total disability, including

• establishing the permanence of total disability
• actions on anticipated permanent residuals, and
• rating day hospital program cases.

Revised December 13, 2005

IX.ii.2.B.6.a#Establishing the Permanence of Total Disability

Under 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 disabilities requiring hospitalization for indefinite periods.

Note: Consider the six-month period a maximum, rather than a minimum, waiting period.

IX.ii.2.B.6.b#Actions on Anticipated Permanent Residuals

Take the following actions if a Veteran suffers a heart attack, stroke, accident, and so forth:

• Evaluate the anticipated permanent residuals from the degree of recovery shown within a comparatively short time after the occurrence.
• Consider the impact of the Veteran’s age, educational level, occupational background, and prior physical condition on the anticipated level of functional impairment.
• Do not defer 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.

IX.ii.2.B.6.c#Rating Day Hospital Program Cases

The Veterans Health 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 pension entitlement based solely on records showing participation in the Day Hospital program.

7Effective Dates for Veterans Pension Awards

This topic contains information on the effective dates for Veterans Pension awards, including

• effective date of a Veterans Pension award, and
• awarding pension retroactively under
  • 38 CFR 3.400, and
  • Public Law (PL) 107-103.

Revised April 11, 2018

IX.ii.2.B.7.a#Effective Date of a Veterans Pension Award

In general, for claims received after September 30, 1984, the effective date of a Veterans Pension award is the date the Department of Veterans Affairs (VA) received the claim, see 38 CFR 3.400(b).

IX.ii.2.B.7.b#Awarding Pension Retroactively Under 38 CFR 3.400

Under 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 disability, 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 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.

IX.ii.2.B.7.c#Awarding Pension Retroactively Under PL 107-103

Effective 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 subject 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 nursing home for long-term care because of disability.

After entitlement to Veterans Pension has been granted and the claims processor determines that the Veteran meets the above criteria, the claims processor should send the Veteran a development letter requesting income and expense information to determine entitlement from one year prior to the date of receipt of claim. Important: Do not establish an end product for control. Inform the Veteran that they have one year to establish entitlement to the earlier date.

8Requirements for Retroactive Payment of Veterans Pension Under 38 CFR 3.400

This topic contains information on the requirements for retroactive payment of Veterans Pension under 38 CFR 3.400, including

• 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 CFR 3.400.

Revised April 11, 2018

IX.ii.2.B.8.a#What Constitutes a Qualifying Disability for a Retroactive Pension Award Under 38 CFR 3.400

To 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 Veteran 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 they first became permanently and totally disabled, and
• continues 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 attack
• cardiovascular accident, or
• critical, incapacitating injury requiring intensive care and/or treatment.

IX.ii.2.B.8.b#Rating Decisions to Dispose of the Issue of a Retroactive Effective Date Under 38 CFR 3.400

If the Veteran claims retroactive benefits under 38 CFR 3.400(b)(1)(ii)(B)

• with the application for pension, 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 issue

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 rating activity determines that a qualifying disability may exist, the rating activity should instruct the authorization activity to advise the claimant that retroactive benefits may be payable. Do not establish a pending control in this event.