VA Form 21-8940: Applying for a Total Disability Rating Based on Unemployability
When applying for any type of service connection through the VA, the forms you need to use and the process itself can seem very complicated. The process of applying to obtain a total disability rating based on individual unemployability (a TDIU rating) can seem especially daunting if you are unfamiliar with the requirements. In this article, we will go over the entire application process, including how to know if you qualify, a detailed explanation of how to fill out your VA Form 21-8940, and where to go if you need additional help with your TDIU claim.
Individual Unemployability: Do You Qualify?
The process of applying for a TDIU rating can be filled with complications because of the process used by the VA to determine who is eligible to receive this type of compensation. Ultimately, the most basic requirement to qualify for TDIU is that your service-connected impairments must preclude your ability to obtain and follow a substantially gainful occupation (SGO). Per the VA’s definition, an SGO is employment in which “non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides.” It suggests a living wage. (M21-1, IV.ii.2.F.1.e.) If a veteran is unable to maintain an SGO, he or she qualifies for TDIU because by the VA’s standards he or she is unable to support him- or herself due to service-connected disability.
The next requirement the VA considers is your schedular rating. Under 38 CFR 4.16(a), a veteran must have a single disability rated at least at 60 percent, or if there is more than one rated disability, at least one must be 40 percent and the other disabilities must combine with that rating to form a total disability rating of 70 percent. In this circumstance, the veteran’s TDIU claim will then be adjudicated by any decision maker in any of the VA’s regional offices.
If the veterans service-connected conditions do not meet the schedular ratings outlined above, then the VA would adjudicate the claim under 38 CFR 4.16(b), in which case the regional rating board would submit the veteran’s case to the Director of Compensation Service for extra-schedular consideration.
How to fill out your VA Form 21-8940 application
Section I – Veteran Identification Information
This first section of your 8940 application is the most clear-cut section of the entire form. Here, you will enter your personal information including your full legal name, social security number, VA file number, date of birth, mailing address, and telephone number. You can also submit an email address if you have one.
Section II – Disability and Medical Treatment
This section includes boxes 8 through 13 and asks you to provide information on the medical treatment you have received for the service connected-disability which prevents you from maintaining an SGO. You will be asked to provide several pieces of important information:
- The name of the service-connected condition which prevents you from maintaining an SGO.
- Information about your recent medical visits relating to this condition, including:
- Whether or not you have been treated and/or hospitalized for this condition in the last 12 months
- The dates you have been receiving medical treatment for this condition
- The name and address of the treating doctor
- The name and address of the hospital where you were treated (if applicable)
- The dates you were hospitalized for this condition (if applicable)
If you find that the space provided is insufficient to enter the information required for this section, you can also fill out an addendum form that will be submitted with your VA Form 21-8940. However, you must ensure to note on the original form that there is additional information attached via the addendum; otherwise, the addendum will not be considered.
Section III – Employment Statement
In this section, you must include details of your employment history in boxes 14 through 22. The information this section requires includes:
- The date your disability affected your full time employment. This is the date that your disability began affecting your ability to work full-time at your SGO.
- The date you last worked full-time.
- The date you became too disabled to work. For many veterans, this day is the same as the date you last worked full time at an SGO. Remember that these questions all pertain to your ability to hold an SGO, so any part-time or temporary work you may have done after your day last worked at your main occupation are not relevant.
- The most you have ever earned in one year, what year that was, and your occupation during that time.
- A list of all your previous employers, including the name and address of the employer, the type of work, your hours per week, dates of employment, time lost from illness, and highest gross earnings per month.
- Information on whether your disability prevents you from performing your duties if you are still in the reserves or national guard.
- Information on your total earned income from the past year and your current monthly earned income.
- Several questions asking if you left your job due to your disability, if you receive disability retirement benefits, and if you receive workers compensation.
- A list of all your attempts to find an SGO since you became too disabled to work (if applicable).
This section is incredibly important not only because it shows the VA that you are unable to hold a substantially gainful occupation but also because it can help the VA determine if you are eligible to receive TDIU benefits even if you are still working. Because of the TDIU requirement that a veteran is eligible for IU if he or she is unable to hold an SGO, even if you are working full or part time, you may still qualify for TDIU if your salary is low enough that your employment is not considered substantially gainful. This is often the case in jobs that are marginal or significantly accommodated to help disabled veterans maintain employment, even if such employment is not substantially gainful.
Section IV – Schooling and Other Training
This section includes boxes 23 through 26 and covers any information you may have regarding your schooling or other training programs you have attended/are attending. The information you will need to provide in this section includes:
- Your highest level of education.
- Whether you had any other education/training before you were too disabled to work.
- If you did have any other education/training, you will need to include what type of education or training it was and the dates of the training/education program.
- Whether you had any other education/training after you were too disabled to work.
- If you did have any other education/training, you will need to include what type of education or training it was and the dates of the training/education program.
- Additional remarks – this is where you can include any explanatory statements regarding gaps in your education/training, why you chose to take a training/education course despite being too disabled to work, etc.
This section is important because it provides the VA with information about what sort of occupations you are able to apply for and the general skill level you have. For example, if you are claiming unemployability based on a physical condition which prevents you from being able to sit, stand, and/or walk for 8 hours a day, 5 days a week, 50 weeks a year, but you have an advanced skill set that would presumably allow you to work from home, the VA could deny your TDIU claim. In those situations, it may be beneficial to consult a vocational expert and have them prepare a statement outlining why the limitations caused by your condition preclude you from holding any kind of SGO. Additionally, gathering sworn statements from family members, friends, or others familiar with your condition and submitting those statements alongside your VA Form 21-8940 could help you provide the VA with a more complete picture of how your disability affects your daily life and prevents you from being able to obtain and follow any SGO.
Section IV – Authorization, Certification, and Signature
In this section, you are required to sign and date the form, thus certifying that all of the information provided is true and correct. This step is important because if you do not sign and date your form, it will not be accepted by the VA for processing. Also, under this section is information on where to send your application. VA Form 21-8940 can be mailed to the VA Evidence Intake Center (EIC) or submitted via fax to the EIC.
Contact the Veterans Law Office About Your Application for Unemployability
If you are having difficulty filling out or filing your VA Form 21-8940 or are still unsure if you qualify for a TDIU rating, please contact our office today for a free case evaluation. Our experienced VA disability lawyers can help you find the best strategy for winning your case and securing the VA disability compensation to which you are entitled.
