I 

118TH CONGRESS 

1ST SESSION H. R. 6362 

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 9, 2023 

Ms. WATERS (for herself, Mr. TAKANO, Mr. MCGOVERN, Mr. GRIJALVA, Ms. 

NORTON, Ms. LEE of California, Mr. DAVIS of Illinois, Ms. SCHAKOWSKY, Mr. CARSON, Mr. CARTER of Louisiana, Mr. CARBAJAL, Ms. 

JACKSON LEE, Mr. VARGAS, and Ms. ESCOBAR) 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 2023’’. 


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1 SEC. 2. CODIFICATION OF INDIVIDUAL UNEMPLOYABILITY. 

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

3 States Code, as amended by the Johnny Isakson and 

4 David P. Roe, M.D. Veterans Health Care and Benefits 

5 Improvement Act of 2020 (Public Law 116–315), is 

6 amended by inserting after section 1165 the following: 

7 ‘‘§ 1166. Determination of total disability by reason of 

8 unemployability 

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

10 (c), for the purposes of this chapter, in the case of a vet11 eran who has a service-connected disability, or service-con12 nected disabilities, not rated as total, the Secretary may 

13 assign a disability rating of total to the veteran if the Sec14 retary determines the veteran— 

15 ‘‘(1) is unable to secure or maintain substan16 tially gainful employment as a result of, in part or 

17 in whole, a service-connected disability; and 

18 ‘‘(2) has— 

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

20 least 60 percent; or 

21 ‘‘(B) two or more service-connected disabil22 ities— 

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

24 least 40 percent; and 

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

26 70 percent. 


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

2 For the above purpose of service-connected disabilities de3 scribed in subsection (a)(2), the Secretary shall consider 

4 as one disability the following: 

5 ‘‘(1) Disabilities of one or both upper extrem6 ities, or of one or both lower extremities, including 

7 the bilateral factor, if applicable. 

8 ‘‘(2) Disabilities resulting from common eti9 ology or a single accident. 

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

11 (including orthopedic, digestive, respiratory, cardio12 vascular-renal, and neuropsychiatric). 

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

14 prisoner of war. 

15 ‘‘(c) ADDITIONAL AUTHORITY OF THE SECRETARY

16 TO ASSIGN A DISABILITY RATING OF TOTAL.—The Sec17 retary may assign a disability rating of total to a veteran 

18 who has a service-connected disability or disabilities de19 scribed in subsection (a)(2)— 

20 ‘‘(1) if the veteran maintains marginal employ21 ment; or 

22 ‘‘(2) if— 

23 ‘‘(A) the veteran maintains substantially 

24 gainful employment; and 


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

2 of circumstances (including total household 

3 medical expenses and the cost of living in the 

4 area in which the veteran resides), determines 

5 that such assignation is appropriate. 

6 ‘‘(d) PROHIBITION ON THE CONSIDERATION OF CER7 TAIN FACTORS.—In making any determination under sub8 section (a) or (c), the Secretary may not consider the fol9 lowing: 

10 ‘‘(1) The age of a veteran. 

11 ‘‘(2) The eligibility of a veteran for any retire12 ment benefit, including any benefit under title II of 

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

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

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

16 employment for which the earned annual income is 

17 less than 100 percent of the official poverty thresh18 old for an individual established by the United 

19 States Census Bureau. 

20 ‘‘(2) The term ‘substantially gainful employ21 ment’ means employment for which the earned an22 nual income equals or exceeds 100 percent of the of23 ficial poverty threshold for an individual established 

24 by the United States Census Bureau.’’. 


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

2 at the beginning of such chapter is amended by adding 

3 after the item relating to section 1165 the following: 

‘‘1166. Determination of total disability by reason of unemployability.’’. 

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

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

6 Affairs shall prescribe such regulations as may be nec7 essary to carry out this section. 

Æ 


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