The ability to overcome the handicap of disability varies widely among individuals. A rating, however, is based primarily upon the average impairment in earning capacity, that is, upon the economic or industrial handicap which must be overcome and not from individual success in overcoming it. However, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effect of combinations of disability.
Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation; provided that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. VA will consider the following to be permanent total disability: the permanent loss of the use of both hands, or of both feet, or of one hand and one foot, or of the sight of both eyes, or becoming permanently helpless or permanently bedridden. Other total disability ratings are scheduled in the various bodily systems of this schedule.
Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities. If a claimant has only one such disability, the disability must be rated at 60 percent or more, and that, if the claimant has two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability ratings 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:
Further, the existence or degree of nonservice-connected disabilities or previous unemployability status should be disregarded when the rating requirements above are met and the service-connected disabilities render a veteran unemployable. 38 C.F.R. § 4.16(a).
Marginal employment is not to be considered substantially gainful employment. 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. 38 C.F.R. § 4.16(a).
All veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities are supposed to be rated totally disabled. Therefore, unemployable claimants who do not otherwise meet the requirements for TDIU should be considered for extra-schedular consideration. In seeking extra-schedular consideration, the rating board should 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. 38 C.F.R. § 4.16.
When the percentage requirements are met, and the disabilities involved are of a permanent nature, a rating of permanent and total disability will be assigned if a claimant is found to be unable to secure and follow substantially gainful employment because of the disability. Prior employment or unemployment status is immaterial if the claimant's disabilities render him or her unemployable. In making such determinations, the following guidelines are to be used:
(a) Marginal employment, for example, as a self-employed farmer or other person, while employed in his or her own business, or at odd jobs or while employed at less than half the usual remuneration will not prevent a finding of unemployability, if the employment restriction is due to disability.
(b) Claims of all veterans who fail to meet the percentage standards but who meet the basic entitlement criteria and are unemployable, will be referred by the rating board to the Veterans Service Center Manager or the Pension Management Center Manager.
38 C.F.R. § 4.17. A permanent and total disability rating is not to be precluded by reason of the coexistence of a misconduct disability when: (a) A veteran, regardless of employment status, also has innocently acquired a 100 percent disability, or (b) where unemployable, the veteran has other disabilities innocently acquired which meet the percentage requirements and would render the average person unable to secure or follow a substantially gainful occupation. Id. § 4.17(a).
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 shown that he or she is unable to secure further employment. With amputations, sequelae of fractures, and other residuals of traumatism shown to be static, 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 that the 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. 38 C.F.R. § 4.18.
VA may not consider a claimant's age as a factor in evaluating service-connected disability and unemployability. Advancing age may not be used as a basis for a total disability rating. Age, as such, is a factor only in evaluations of disability not resulting from service, i.e., for the purposes of pension. 38 C.F.R. § 4.19.