Sean Kendall Veterans Law Firm

No.  Frequently veterans that are unable to work due to their service-connected disabilities are told by VA that they are ineligible for unemployability because their service-connected disabilities are rated less than 70 percent.  This is incorrect, regardless of what percentage a veteran is assigned, if the service-connected disabilities prevent a veteran from working, they must be paid total disability individual unemployability.

The confusion arises because of VA officers and veterans service officers misinterpreting VA's regulations.  VA regulations provide that if a veteran has one-service-connected disability, to be eligible for unemployability,it must be rated at least 60-percent or higher. If the veteran has two or more service-connected disabilities, at least one of those disabilities must be rated at 40-percent or higher, and, after factoring in the ratings for the other disabilities, the veteran’s combined disability rating must be 70-percent or higher.  Thus, veterans are told that if they do not meet these requirements, don't bother applying for unemployability.  This is wrong.

That is because VA regulations also provide that "It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled." 

"Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth [above]."  Thus, any veteran, regardless of the underlying percentage, should apply for the unemployability if they are not working because of service-connected disabilities. 

The only difference is that if a veteran does not meet the percentage threshold of 70 percent, the Regional Office doesn't decide the case, it is referred to the Washington DC office.  However, the Washington DC office will grant the claim if you present it correctly.  Our office has helped many veterans win their unemployability claims through the central office referral process.  Moreover, the Board of Veterans' Appeals has the power to grant an unemployability claim even if a veteran doesn't meet the threshold rating, and will often grant the claim without referral to central office.