Protecting Benefits for Disabled Veterans Act of 2017

“1164. Determination of total disability by reason of unemployability

“(a) In general—Subject to subsection (b), 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) 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.

“(c) Prohibition on the consideration of certain factors—In making any determination under subsection (a) or (b), 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.).

“(d) 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.”