**§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(a))

\(b\) 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 and Pension 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.

\[40 FR 42535, Sept. 15, 1975, as amended at 54 FR 4281, Jan. 30, 1989;
55 FR 31580, Aug. 3, 1990; 58 FR 39664, July 26, 1993; 61 FR 52700, Oct.
8, 1996\]

**Supplement *Highlights* references**: 5(1), 19(1).