I 
116TH CONGRESS 
1ST SESSION H. R. 5028 
To amend title 38, United States Code, to codify the authority of the Sec-
retary 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 author-
ity of the Secretary of Veterans Affairs to assign a 
disability rating of total to a veteran by reason of 
unemployability, and for other purposes. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Protecting Benefits 
for Disabled Veterans Act of 2019’’. 
VerDate Sep 11 2014 
04:18 Nov 19, 2019
Jkt 099200
PO 00000
Frm 00001
Fmt 6652
Sfmt 6201
E:\BILLS\H5028.IH
H5028
kjohnson on DSK79L0C42 with BILLS
SEC. 2. CODIFICATION OF INDIVIDUAL UNEMPLOYABILITY. 
(a) IN GENERAL.—Chapter 11 of title 38, United 
States Code, is amended by inserting after section 1163 
the following: 
‘‘§ 1164. Determination of total disability by reason of 
unemployability 
‘‘(a) AUTHORITY.—Subject to subsections (b) and 
(c), for the purposes of this chapter, in the case of a vet-
eran who has a service-connected disability, or service-con-
nected disabilities, not rated as total, the Secretary may 
assign a disability rating of total to the veteran if the Sec-
retary determines the veteran— 
‘‘(1) is unable to secure or maintain substan-
tially gainful employment as a result of, in part or 
in whole, a service-connected disability; and 
‘‘(2) has— 
‘‘(A) a service-connected disability rated at 
least 60 percent; or 
‘‘(B) two or more service-connected disabil-
ities— 
‘‘(i) at least one of which is rated at 
least 40 percent; and 
‘‘(ii) that, combined, are rated at least 
70 percent. 
‘‘(b) DETERMINATION OF CERTAIN DISABILITIES.— 
For the above purpose of service-connected disabilities de-
VerDate 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
scribed in subsection (a)(2), the Secretary shall consider 
as one disability the following: 
‘‘(1) Disabilities of one or both upper extrem-
ities, or of one or both lower extremities, including 
the bilateral factor, if applicable. 
‘‘(2) Disabilities resulting from common eti-
ology or a single accident. 
‘‘(3) Disabilities affecting a single body system 
(including orthopedic, digestive, respiratory, cardio-
vascular-renal, and neuropsychiatric). 
‘‘(4) Disabilities incurred or aggravated as a 
prisoner of war. 
‘‘(c) ADDITIONAL AUTHORITY OF THE SECRETARY 
TO ASSIGN A DISABILITY RATING OF TOTAL.—The Sec-
retary may assign a disability rating of total to a veteran 
who has a service-connected disability or disabilities de-
scribed in subsection (a)(2)— 
‘‘(1) if the veteran maintains marginal employ-
ment; or 
‘‘(2) if— 
‘‘(A) the veteran maintains substantially 
gainful employment; and 
‘‘(B) the Secretary, considering the totality 
of circumstances (including total household 
medical expenses and the cost of living in the 
VerDate Sep 11 2014 
04:18 Nov 19, 2019
Jkt 099200
PO 00000
Frm 00003
Fmt 6652
Sfmt 6201
E:\BILLS\H5028.IH
H5028
kjohnson on DSK79L0C42 with BILLS
area in which the veteran resides), determines 
that such assignation is appropriate. 
‘‘(d) PROHIBITION ON THE CONSIDERATION OF CER-
TAIN FACTORS.—In making any determination under sub-
section (a) or (c), the Secretary may not consider the fol-
lowing: 
‘‘(1) The age of a veteran. 
‘‘(2) The eligibility of a veteran for any retire-
ment benefit, including any benefit under title II of 
the Social Security Act (42 U.S.C. 401 et seq.). 
‘‘(e) DEFINITIONS.—In this section: 
‘‘(1) The term ‘marginal employment’ means 
employment for which the earned annual income is 
less than 100 percent of the official poverty thresh-
old for an individual established by the United 
States Census Bureau. 
‘‘(2) The term ‘substantially gainful employ-
ment’ means employment for which the earned an-
nual income equals or exceeds 100 percent of the of-
ficial poverty threshold for an individual established 
by the United States Census Bureau.’’. 
(b) CLERICAL AMENDMENT.—The table of sections 
at the beginning of chapter 11 of title 38, United States 
Code, is amended by adding after the item relating to sec-
tion 1163 the following: 
‘‘1164. Determination of total disability by reason of unemployability.’’. 
VerDate Sep 11 2014 
04:18 Nov 19, 2019
Jkt 099200
PO 00000
Frm 00004
Fmt 6652
Sfmt 6211
E:\BILLS\H5028.IH
H5028
kjohnson on DSK79L0C42 with BILLS
(c) REGULATIONS.—Not later than 180 days after 
the effective date of this Act, the Secretary of Veterans 
Affairs shall prescribe such regulations as may be nec-
essary to carry out this section. 
Æ 
VerDate Sep 11 2014 
04:18 Nov 19, 2019
Jkt 099200
PO 00000
Frm 00005
Fmt 6652
Sfmt 6301
E:\BILLS\H5028.IH
H5028
kjohnson on DSK79L0C42 with BILLS