I 

116TH CONGRESS 

1ST SESSION H. R. 5028 

To amend title 38, United States Code, to codify the authority of the Secretary of Veterans Affairs to assign a disability rating of total to a 

veteran by reason of unemployability, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

NOVEMBER 8, 2019 

Ms. WATERS (for herself, Ms. NORTON, Mr. KILMER, Mrs. BEATTY, Ms. 

TLAIB, and Mr. THOMPSON of Mississippi) introduced the following bill; 

which was referred to the Committee on Veterans’ Affairs 

A BILL 

To amend title 38, United States Code, to codify the authority of the Secretary of Veterans Affairs to assign a 

disability rating of total to a veteran by reason of 

unemployability, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Protecting Benefits 

5 for Disabled Veterans Act of 2019’’. 


kjohnson on DSK79L0C42 with BILLS
2 

•HR 5028 IH

1 SEC. 2. CODIFICATION OF INDIVIDUAL UNEMPLOYABILITY. 

2 (a) IN GENERAL.—Chapter 11 of title 38, United 

3 States Code, is amended by inserting after section 1163 

4 the following: 

5 ‘‘§ 1164. Determination of total disability by reason of 

6 unemployability 

7 ‘‘(a) AUTHORITY.—Subject to subsections (b) and 

8 (c), for the purposes of this chapter, in the case of a vet9 eran who has a service-connected disability, or service-con10 nected disabilities, not rated as total, the Secretary may 

11 assign a disability rating of total to the veteran if the Sec12 retary determines the veteran— 

13 ‘‘(1) is unable to secure or maintain substan14 tially gainful employment as a result of, in part or 

15 in whole, a service-connected disability; and 

16 ‘‘(2) has— 

17 ‘‘(A) a service-connected disability rated at 

18 least 60 percent; or 

19 ‘‘(B) two or more service-connected disabil20 ities— 

21 ‘‘(i) at least one of which is rated at 

22 least 40 percent; and 

23 ‘‘(ii) that, combined, are rated at least 

24 70 percent. 

25 ‘‘(b) DETERMINATION OF CERTAIN DISABILITIES.— 

26 For the above purpose of service-connected disabilities deVerDate Sep 11 2014 04:18 Nov 19, 2019 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H5028.IH H5028

kjohnson on DSK79L0C42 with BILLS
3 

•HR 5028 IH

1 scribed in subsection (a)(2), the Secretary shall consider 

2 as one disability the following: 

3 ‘‘(1) Disabilities of one or both upper extrem4 ities, or of one or both lower extremities, including 

5 the bilateral factor, if applicable. 

6 ‘‘(2) Disabilities resulting from common eti7 ology or a single accident. 

8 ‘‘(3) Disabilities affecting a single body system 

9 (including orthopedic, digestive, respiratory, cardio10 vascular-renal, and neuropsychiatric). 

11 ‘‘(4) Disabilities incurred or aggravated as a 

12 prisoner of war. 

13 ‘‘(c) ADDITIONAL AUTHORITY OF THE SECRETARY

14 TO ASSIGN A DISABILITY RATING OF TOTAL.—The Sec15 retary may assign a disability rating of total to a veteran 

16 who has a service-connected disability or disabilities de17 scribed in subsection (a)(2)— 

18 ‘‘(1) if the veteran maintains marginal employ19 ment; or 

20 ‘‘(2) if— 

21 ‘‘(A) the veteran maintains substantially 

22 gainful employment; and 

23 ‘‘(B) the Secretary, considering the totality 

24 of circumstances (including total household 

25 medical expenses and the cost of living in the 


kjohnson on DSK79L0C42 with BILLS
4 

•HR 5028 IH

1 area in which the veteran resides), determines 

2 that such assignation is appropriate. 

3 ‘‘(d) PROHIBITION ON THE CONSIDERATION OF CER4 TAIN FACTORS.—In making any determination under sub5 section (a) or (c), the Secretary may not consider the fol6 lowing: 

7 ‘‘(1) The age of a veteran. 

8 ‘‘(2) The eligibility of a veteran for any retire9 ment benefit, including any benefit under title II of 

10 the Social Security Act (42 U.S.C. 401 et seq.). 

11 ‘‘(e) DEFINITIONS.—In this section: 

12 ‘‘(1) The term ‘marginal employment’ means 

13 employment for which the earned annual income is 

14 less than 100 percent of the official poverty thresh15 old for an individual established by the United 

16 States Census Bureau. 

17 ‘‘(2) The term ‘substantially gainful employ18 ment’ means employment for which the earned an19 nual income equals or exceeds 100 percent of the of20 ficial poverty threshold for an individual established 

21 by the United States Census Bureau.’’. 

22 (b) CLERICAL AMENDMENT.—The table of sections 

23 at the beginning of chapter 11 of title 38, United States 

24 Code, is amended by adding after the item relating to sec25 tion 1163 the following: 

‘‘1164. Determination of total disability by reason of unemployability.’’. 


kjohnson on DSK79L0C42 with BILLS
5 

•HR 5028 IH

1 (c) REGULATIONS.—Not later than 180 days after 

2 the effective date of this Act, the Secretary of Veterans 

3 Affairs shall prescribe such regulations as may be nec4 essary to carry out this section. 

Æ 


kjohnson on DSK79L0C42 with BILLS