Codification of individual unemployability

(a)

In general

Chapter 11 of title 38, United States Code, as amended by the Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020 (Public Law 116–315), is amended by inserting after section 1165 the following:

1166.

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 veteran who has a service-connected disability, or service-connected disabilities, not rated as total, the Secretary may assign a disability rating of total to the veteran if the Secretary determines the veteran—(1)is unable to secure or maintain substantially 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 disabilities—(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 described in subsection (a)(2), the Secretary shall consider as one disability the following:(1)Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable.(2)Disabilities resulting from common etiology or a single accident.(3)Disabilities affecting a single body system (including orthopedic, digestive, respiratory, cardiovascular-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 Secretary may assign a disability rating of total to a veteran who has a service-connected disability or disabilities described in subsection (a)(2)—(1)if the veteran maintains marginal employment; 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 area in which the veteran resides), determines that such assignation is appropriate.(d)

Prohibition on the consideration of certain factors

In making any determination under subsection (a) or (c), the Secretary may not consider the following:(1)The age of a veteran.(2)The eligibility of a veteran for any retirement 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 threshold for an individual established by the United States Census Bureau.(2)The term substantially gainful employment means employment for which the earned annual income equals or exceeds 100 percent of the official poverty threshold for an individual established by the United States Census Bureau.

(b)

Clerical amendment

The table of sections at the beginning of such chapter is amended by adding after the item relating to section 1165 the following:

1166. Determination of total disability by reason of unemployability.

(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 necessary to carry out this section.