Overview
In This Section |
This section contains the following topics:
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1. General Information on Determining Unemployability
Introduction |
This topic contains information on determining unemployability, including information, including
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Change Date |
December 13, 2005
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V.ii.1.B.1.f. Making Unemployability Decisions |
Both the degree of disability and the Veteran’s age are determinative factors as to unemployability. Consider age, education, occupational background, and other related factors when making a decision of unemployability in pension claims.
If basic eligibility is present, do not hesitate to apply 38 CFR 3.321(b)(2) if disability percentage requirements are not met.
Exercise restraint in discontinuing eligibility to pension benefits for Veterans already on the rolls merely because they have recently regained employment. Income limitations generally preclude both current-law pension and Section 306 Pension recipients who are working and whose employability is in question from receiving benefits.
If benefits have been discontinued for an extended period based on excessive income from earnings, a redetermination of unemployability on a factual basis is required.
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2. Factors to Consider When Determining Unemployability
Introduction |
This topic contains information on the factors to consider when determining unemployability, including
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Change Date |
December 13, 2005
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3. Determining Marginal Employment
Introduction |
This topic contains information on determining marginal employment, including
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Change Date |
December 13, 2005
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V.ii.1.B.3.a. Qualifying Criteria for Marginal Employment |
Marginal employment exists if, by reason of age and disability, the Veteran
Either of the criteria listed above will suffice to qualify as marginal employment under 38 CFR 4.17(a).
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V.ii.1.B.3.b. Exceptions to the Qualifying Criteria for Marginal Occupations |
In many areas there are jobs available where the pay is too low to attract the able-bodied and which, therefore, must be filled by older or disabled persons.
Such jobs are still considered marginal employment, even though the
Jobs such as these are generally sedentary and are often of the type that qualify under 38 CFR 3.342(b)(4), such as employment in a sheltered workshop.
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4. Determining Unemployability or Marginal Employment of Farmers
Introduction |
This topic contains information on determining the unemployability or marginal employment of farmers, including
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Change Date |
December 13, 2005
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V.ii.1.B.4.e. Considering Past Work History |
Consider whether the Veteran was required by age or disability to change from some other type of full-time employment to a marginal farming operation.
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5. Obtaining Evidence of Disability
Introduction |
This topic contains information on obtaining evidence of disability, including
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Change Date |
December 13, 2005
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V.ii.1.B.5.a. Obtaining SSD Records |
Obtain and consider complete copies of Social Security Administration (SSA) records used in the SSA determination of disability if
Reference: For more information on requesting SSA information, see M21-1, Part III, Subpart iii, 3.A.
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6. Determining Permanent and Total Disability
Introduction |
This topic contains information on determining permanent and total disability, including information on
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Change Date |
December 13, 2005
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V.ii.1.B.6.a. Establishing the Permanence of Total Disability |
Under 38 CFR 3.342(b)(2)
Note: Consider the six-month period a maximum, rather than a minimum, waiting period.
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7. Effective Dates for Veterans Pension Awards
Introduction |
This topic contains information on the effective dates for disability pension awards, including the
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Change Date |
April 11, 2018
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V.ii.1.B.7.a. Effective Date of a Veterans Pension Award |
In general, for claims received after September 30, 1984, the effective date of a Veterans Pension award is the date the Department of Veterans Affairs (VA) received the claim, see 38 CFR 3.400(b).
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V.ii.1.B.7.b. Awarding Pension Retroactively Under 38 CFR 3.400 |
Under 38 CFR 3.400(b)(1)(ii)(B), VA may award Veterans Pension retroactively for up to a period of one year before the date of claim, but not earlier than the date of permanent and total disability, if all the following conditions are met:
The disability prevented the Veteran from filing the pension claim for a period of at least 30 consecutive days following the beginning date of permanent and total disability.
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V.ii.1.B.7.c. Awarding Pension Retroactively Under PL 107-103 |
Effective September 17, 2001, Public Law (PL) 107-103 eliminated the requirement for a disability rating determination for Veterans who had either attained age 65 or were presumed disabled based on nursing home status or being found disabled by SSA.
PL 107-103 is considered liberalizing legislation subject to 38 CFR 3.114. Therefore, Veterans Pension may be awarded retroactive for up to one year prior to the date of receipt of claim if the Veteran met any of the following criteria continuously from September 17, 2001 until the date of claim:
After entitlement to Veterans Pension has been granted and the claims processor determines that the Veteran meets the above criteria, the claims processor should send the Veteran a development letter requesting income and expense information to determine entitlement from one year prior to the date of receipt of claim.
Important: Do not establish an end product for control. Inform the Veteran that he/she has one year to establish entitlement to the earlier date.
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8. Requirements for Retroactive Payment of Veterans Pension Under 38 CFR 3.400
Introduction |
This topic contains information on the requirements for retroactive payment of Veterans Pension under 38 CFR 3.400, including information on
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Change Date |
April 11. 2018
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V.ii.1.B.8.a. What Constitutes a Qualifying Disability for a Retroactive Pension Award Under 38 CFR 3.400 |
To qualify for a retroactive pension award under 38 CFR 3.400(b)(1)(ii)(B), the claimed disability must be so incapacitating that it reasonably could have prevented the Veteran from filing an application for pension. A disability will meet this requirement when it
Note: Although the qualifying disability must have continued for a period of at least 30 consecutive days, it is not necessary for it to have continued for the entire retroactive period.
Example: Examples of this type of disability are a
critical, incapacitating injury requiring intensive care and/or treatment.
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V.ii.1.B.8.b. Rating Decision to Dispose of the Issue of a Retroactive Effective Date Under 38 CFR 3.400 |
If the Veteran claims retroactive benefits under 38 CFR 3.400(b)(1)(ii)(B)
Notes:
If the Veteran has not claimed a retroactive payment under 38 CFR 3.400(b)(1)(ii)(B), but the rating activity determines that a qualifying disability may exist, the rating activity should instruct the authorization activity to advise the claimant that retroactive benefits may be payable. Do not establish a pending control in this event.
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Historical_M21-1V_ii_1_SecB_4-21-15.docx | May 20, 2019 | 54 KB |
4-11-18_Key-Changes_M21-1-V_ii_1_SecB.docx | May 20, 2019 | 58 KB |
Change-April-21-2015-Transmittal-Sheet-M21-1MRV_ii_1_SecB_TS.docx | May 20, 2019 | 39 KB |
Transmittal-12_13_05.doc | May 20, 2019 | 54 KB |
in Chapter 1 Live Pension Rating, Part V Pension and Parents Dependency and Indemnity Compensation (DIC), Subpart ii Rating
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