Chapter Twenty One

Unemployability 38 CFR

According to Title 38, part 4, section .16 “Total disability rating for compensation based on unemployability of the individual.”

Any Veteran rated with one disability at 60% or one disability rated at 40% and one or more additional disabilities which combined make the Rating 70% is entitle to have their rating raised to 100% due to unemployability. The Veterans disabilities must be service connected. The Veteran must establish he or she has been unable to maintain or retain gainful employment because of their disability.

A Veteran may have marginal employment which means he or she has worked, but because of the disabilities the amount of 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 shall not be considered substantially gainful employment.

According to Title 38, part 4, section .18 ”Unemployability”

...A Veteran may be considered as unemployable upon termination of employment which was provided on account of disability, or in which special consideration was given on account of the same, when it is satisfactorily shown that he or she is unable to secure further employment.

With amputations, sequella or fractures and other residuals of traumatism show to be of static character, a showing of continuous unemployability from date of incurrence, or the date the condition reached the stabilized level, is a general requirement in order to establish the fact that present unemployability is the result of the disability.

However, consideration is to be given to the circumstances of employment in individual claims, and , if the employment was only occasional, intermittent, tryout or unsuccessful, or eventually terminated on account of the disability, present unemployability may be attributed to the static disability.....

The above three paragraphs basically say a Veteran can be rated at 100% Total Disabled if he or she is unable to retain a job because of their disability. The Veteran does not need any specific Rating for his or her disability other than it must be service connected.

The word “Static” means the Veterans’ disability has not changed for some time. The term “Stabilized Level” means the Veterans’ disability has stabilized at the static level. In other words the Veterans disability has caused him to be unemployed and unemployable, and it is unlikely his or her condition will get any better.

For a Veteran to prove he or she is unable to work because of their disability they must put together a package of information and documents which establish that fact. A Veteran might do this by writing a cover letter which states the various jobs he or she has had. Letters from former employers stating the Veterans work record would be helpful, as long as the employer doesn’t state what a fine, hard working person the Veteran was.

If the Veteran has had one job for a long length of time, he or she would benefit from a letter stating difficulties the Veteran has had as an employee. Such as, “shows up late, does not get along well with co-workers, has problems with authority figures, gets angry easily, etc.”

The more information you can get an employer to write about you which demonstrates your PTSD condition, the better off you are at being able to convince the Rating board you are unemployable. It is extremely helpful if you can get an employer to write a letter stating why you were terminated, if the termination relates to your PTSD symptoms.

You will also need a letter from a Psychiatrist confirming your condition has been static and has stabilized at that point. The Psychiatrist needs to help establish in his/her letter for you, that it is unlikely your condition will change.