Sorry for the mess!

The site is undergoing a massive update. All the content on the site still works but things just might look a little messy and disorganized. Most of the upgrades will probably be don by the end of the month. Thank you for your understanding!

Updated Sep 25, 2024

In This Section

  
This section contains the following topics:
 
Topic
Topic Name
1
2
3
4
 

1. Evaluating Evidence to Establish Entitlement to IU

Introduction

  
This topic contains guidance on IU claims review and development, including

Change Date

  
September 25, 2024

VIII.iv.3.B.1.a.  General Evidence Requirements in IU Claims

  
A decision concerning entitlement to a total disability evaluation based on individual unemployability (IU) in accordance with 38 CFR 3.340, 38 CFR 3.341(a), and 38 CFR 4.16 is based on a review of all available evidence, which should be sufficient to evaluate the
  • current severity of the service-connected (SC) disability(ies) that the Veteran states and/or the evidence indicates prevent(s) substantially gainful employment
  • the impact of SC disability(ies) upon employability, and
  • employment status.
Development of the claim must be targeted at gathering all evidence concerning economic and non-economic factors affecting employability, including but not limited to evidence concerning the Veteran’s
  • current employment status
  • past employment history
  • educational/training history, and
  • functional impairment arising from SC disabilities as shown by
    • examinations
    • Department of Veterans Affairs (VA) or private medical evidence, and
    • lay evidence.
Reference:  For more information on within scope determinations, see M21-1, Part V, Subpart ii, 3.A.2.

VIII.iv.3.B.1.b.  Determining Whether IU is an Issue in a Claim

  
While a substantially complete VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, is necessary to provide VA with information needed to substantiate entitlement to IU, it is not necessary to raise the issue of IU.

VIII.iv.3.B.1.c.  Development for VA Form 21-8940

  

Forward a VA Form 21-8940 to the Veteran if the form has not been received but a request for IU is

  • expressly raised by the Veteran, or
  • reasonably raised by the evidence of record.
Important:
  • When written communication or other evidence indicates the Veteran cannot work because of SC disabilities and a standard application for benefits with a specific claim for IU has not been received, but the criteria to consider the information a reasonably raised claim has not been met due to the Veteran’s disabilities not meeting the schedular criteria specified under 38 CFR 4.16(a), follow the request for application procedures at M21-1, Part II, Subpart iii, 2.G.1.
  • A Veteran’s statement of loss or termination of employment can only reasonably raise a claim for IU if the Veteran indicates that termination was due to an SC disability.

References:  For more information on required

VIII.iv.3.B.1.d. Requirement for VA Form 21-8940

  
A substantially complete VA Form 21-8940 is required to establish entitlement to IU because it gathers relevant and indispensable information regarding a claimant’s disabilities and employment and educational histories.  The form concludes with a series of sworn certification statements, and in endorsing it, a Veteran
  • attests to employment status, and
  • signals understanding of the IU benefit’s incompatibility with substantially gainful work.
A properly signed and executed VA Form 21-8940 enables VA to gather the information necessary to determine the Veteran’s entitlement to IU and recover IU compensation that is later discovered to have been awarded on fraudulent terms.
 
Important:
  • If the issue of IU is raised by the Veteran or reasonably raised by the evidence of record and the only VA Form 21-8940 of record was received as part of a finally adjudicated claim, a new VA Form 21-8940 must be provided to the Veteran.
  • A VA Form 21-8940 must be signed by the Veteran and not a third-party source such as a power of attorney.
Reference:  For more information on criteria for substantially complete applications, see M21-1, Part II, Subpart iii, 1.C.

VIII.iv.3.B.1.e.  Veteran’s Responsibility to Specify a Disability or Disabilities That Cause Unemployability

  
A request for a total disability evaluation on the basis of unemployability, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate claim for benefits.  Rather, the IU claim involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or as a part of a claim for increased compensation if the disability upon which IU is based has already been found to be SC.
 
As noted in M21-1, Part II, Subpart iii, 1.A.1.a, VA Form 21-8940 is not a standard claim form for entitlement to an increased evaluation or service connection (SC) for a disability listed on that form.
 
A claim for IU, however, may not be freestanding and must be associated with the evaluation of a current SC condition or an initial request for SC for the underlying disabilities claimed to cause unemployability.
  • As part of a substantially complete application for IU, VA requires that a claimant with multiple SC disabilities specify at least one disability that causes the unemployability.
  • VA will address the evaluation of all SC disabilities claimed to cause unemployability as a part of the claim for entitlement to IU.
Use the table below to determine the appropriate action to take based on whether the Veteran specifies a disability as the cause of unemployability.
 
If the Veteran …
Then …
only has one SC disability
  • presume that disability to be the cause of the Veteran’s unemployability, and
  • consider the issue of evaluation for the disability to be within scope of the IU claim.
  • has multiple SC disabilities, but
  • does not identify which SC disability(ies) cause(s) unemployability
Notes:
  • If telephone contact is unsuccessful, document the attempts in the Veterans Benefits Management System (VBMS) and send the Veteran a letter requesting that they identify which SC disability(ies) are believed to result in unemployability.
  • After allowing 30 days to respond, if the Veteran has not provided the requested information, the issue must be referred to the rating activity for denial.
  • has multiple SC disabilities, and
  • identifies one or more as the cause of unemployability
consider the identified disabilities as within scope of the  IU claim.
indicates on VA Form 21-8940 that all SC disabilities result in unemployability
  • consider the evaluation of all SC disabilities as within scope of the IU claim, or
  • contact the Veteran to clarify the specific disabilities causing unemployability, documenting any contact with the Veteran on VA Form 27-0820, and address the evaluation of only those SC disabilities the Veteran identifies.
lists a non-service-connected (NSC) disability on the VA Form 21-8940 but does not submit a claim for the NSC disability
follow the request for application procedures in M21-1, Part II, Subpart iii, 2.G.1 to address the NSC disability.
 
Note:  The listing of the NSC disability on the form is not considered a claim for SC for that disability.
  • lists an NSC disability on the VA Form 21-8940, but does not submit a claim for the NSC disability, and
  • was previously denied SC for the disability

follow the request for application procedures in M21-1, Part II, Subpart iii, 2.G.1 to address the NSC disability.

 
Exception:  When the NSC issue listed on VA Form 21-8940 is on legacy appeal, do not accept as a request for application.  To resolve the IU claim
  • continue the legacy appeal for the issue listed on VA Form 21-8940
  • proceed with development of the IU claim without further development of the legacy appeal issue as a part of the IU claim
  • notify the claimant that the issue is on legacy appeal
  • refer the IU claim to the rating activity for rating based on the evidence of record without addressing the legacy appeal issue as a separate issue in the rating, and
  • do not delay a decision on IU pending resolution of the legacy appeal.
 
Important:  When a claim for entitlement to IU is successfully withdrawn, as discussed in M21-1, Part II, Subpart iii, 2.F, all issues associated with IU claim as listed on VA Form 21-8940 are also considered withdrawn unless the issue was specifically claimed on an appropriate standard form for that claim or contention type.
 
Reference:  For more information on the status of an IU claim relative to the underlying disabilities, see Rice v. Shinseki, 22 Vet.App. 447 (2009).

VIII.iv.3.B.1.f.  Identifying Reasonably Raised Claims of IU

  
Reasonably raised claims of IU may arise
  • during the processing of a
    • claim
    • decision review request under 38 CFR 3.2500, or
    • legacy appeal, or
  • as a result of a routine future examination.
 VA must consider a claim for IU if
  • the Veteran’s SC rating meets the minimum schedular criteria found in 38 CFR 4.16(a), and
  • there is current evidence of unemployability due to an SC disability(ies) in the Veteran’s claims folder or under VA control.
Reference:  For more information on reasonably raised claims for IU, see

VIII.iv.3.B.1.g.  Developing Reasonably Raised Claims of IU

  
When a reasonably raised claim of IU is deferred by the rating activity,
  • develop the reasonably raised IU issue under the existing end product, which will remain pending until a merits determination of IU entitlement is made, and
  • use the table below to determine whether it is necessary to provide section 5103 notice for the claim.
 
If the claim that prompted the reasonably raised inference of IU was submitted …
Then send a …
subsequent development letter, using the Unemployability – 21-8940 needed development action.
  • on a non-EZ form, or
  • more than one year prior to the date action is being taken
Section 5103 notice, enclosing VA Form 21-8940 for completion.
 
Important:
  • When development for a reasonably raised claim of IU is incorporated within a decision notice letter, ensure that the claimant is informed of the time periods within which the evidence must be submitted.
  • Upon receipt of a completed VA Form 21-8940 in response to the development described above, claims processors should determine if the existing medical evidence, to include any disability benefits questionnaire (DBQ) previously requested by VA or completed by a private provider, is sufficient to reflect the current severity of the SC condition(s) claimed as causing unemployability.
    • If the existing evidence is sufficient (which is likely if the rating activity recently made a decision on evaluation of the condition(s)), refer the claim to the rating activity for a decision on the deferred issue of IU.
    • If the existing evidence is not sufficient,
      • request an examination for the condition(s), and
      • select the EMPLOYMENT IMPACT ASSESSMENT REQUESTED? field in VBMS.
Reference:  For more information on sufficient medical evidence and the need for an examination in IU claims, see M21-1, Part VIII, Subpart iv, 3.B.2.a and b.
 

2.  Medical Evidence in Support of IU Claims

Introduction

  
This topic contains guidance on medical evidence requirements in IU claims, including

Change Date

  
September 25, 2024

VIII.iv.3.B.2.a.  Medical Evidence and Examination Requirements in IU Claims

  
A claim for IU must contain sufficient medical evidence to
  • support a current evaluation of the SC disabilities alleged by the claimant to be causing unemployability, and
  • indicate how functional impairments caused by those SC disabilities impact employment activities.
The evidence should reflect the Veteran’s condition within the past 12 months and include, but need not be limited to
  • the results of VA examination(s)
  • hospital reports, and/or
  • outpatient treatment records.
Important:  A medical examination is not automatically required in every IU claim.  An examination, including a request for an employment impact assessment as discussed in M21-1, Part VIII, Subpart iv, 3.B.2.b, is required if the information and evidence of record do not contain sufficient competent medical evidence to decide the claim.

VIII.iv.3.B.2.b.  Requesting an Examination in IU Claims

  
When an examination is necessary, it is normally sufficient to request condition-specific DBQs for the conditions alleged to cause unemployability on the VA Form 21-8940 (for example, joints, mental, and peripheral nerves DBQs).
 
Schedule a general medical examination only if the rating activity determines that it is needed to fairly and fully adjudicate the IU claim, such as when the claim is made in connection with original claims for disability compensation or where it is alleged that multiple SC and/or NSC disabilities may have an impact on employability.  However, do not order examinations for disabilities not alleged to cause or contribute to unemployability, even if the Veteran has received a previous award of SC for the disabilities.
 
Do not ask the examiner to opine as to whether or not the Veteran is “unemployable” due to the indicated SC disabilities.  A determination that a Veteran is unemployable is a legal determination that rests solely with the rating activity.
 
Instead, request that the examiner
  • comment on the Veteran’s ability to function in an occupational environment, and
  • describe functional impairment caused solely by the SC disabilities.
Note:  The language generated upon selection of the EMPLOYMENT IMPACT ASSESSMENT REQUESTED? field when requesting an examination through VBMS is legally sufficient to elicit the information necessary to adjudicate the issue of IU.
 
References:  For more information on
 

3.  Employment-Related Development in IU Claims

Introduction

  
This topic contains information on employment-related development in IU claims, including

Change Date

  
July 29, 2021

VIII.iv.3.B.3.a.     Employment History Requirements in IU Claims

  
VA Form 21-8940 requires an employment history for the last five years that the Veteran worked.  In determining whether the Veteran provided work history information for the required time period, review the entries in Blocks 14 and 15 on the VA Form 21-8940.
 

Note:  The minimum required work history, for the purpose of requesting employment information from the Veteran’s employer(s), must include the last year of employment.

Important:  If the Veteran fails to provide employment history, the evaluation of the underlying issues claimed to cause unemployability must still be adjudicated even though the claim for IU may result in denial.

VIII.iv.3.B.3.b.  Action to Take Based on Employment History Provided

  
Use the table below to determine the appropriate action to take based on whether the Veteran provides the required work history on VA Form 21-8940.
 
Step
Action
1
Is the work history on VA Form 21-8940 complete?
  • If yes, go to Step 5.
  • If no, go to Step 2.
Note:  When the Veteran has included an entry in the work history information, but the reported period of work covers less than five years, assume that is the entire work history unless the remainder of the evidence of record is inconsistent with such an assumption.  When the less-than-five-year history provided is inconsistent with the remainder of the evidence of record, go to Step 2 to clarify the work history.
2
Make reasonable efforts to contact the Veteran by telephone to gather the missing employment history.
3
Was the telephone contact successful?
  • If yes,
    • document the employment information, and
    • go to Step 5.
  • If no, send a letter requesting that the Veteran provide work history within 30 days from the date of the notification letter.
4
Did the Veteran respond within 30 days?
  • If yes, go to Step 5.
  • If no, forward the claim to the rating activity for a decision after completing other required development for IU.
5
Follow the procedures in M21-1, Part VIII, Subpart iv, 3.B.3.c for requesting employment information from employers.
 

VIII.iv.3.B.3.c.  Requesting Employment Information From Employers

  
Development for VA Form(s) 21-4192, Request for Employment Information in Connection With Claim for Disability Benefits, is routinely initiated at the time a claim for IU is received via submission of VA Form 21-8940. Use the table below to request VA Form(s) 21-4192, for the Veteran’s last year of employment even if the Veteran
  • has not worked for five years or more, or
  • is or may be currently employed, as marginal employment is possible.
Exceptions:
  • When the evidence of record clearly warrants a grant of entitlement to IU, do not delay a rating decision granting entitlement to IU for initial or continued development for VA Form 21-4192.
  • Do not send the VA Form 21-4192 to a previous employer if the Veteran states that the employer is no longer in business or other evidence indicates the business is closed.
  • Do not send the VA Form 21-4192 when the Veteran reports self- employment.  Follow the procedures at M21-1, Part VIII, Subpart iv, 3.B.3.d for development regarding self-employment.
Step
Action
1
  • Send a VA Form 21-4192 to the former employer(s) for which the Veteran worked during his last year of employment.
  • At the same time, send a copy of VA Form 21-4192 to the Veteran and request that the previous employer complete and return the form.
2
Was a completed VA Form 21-4192 received from the Veteran’s employer(s) within 15 days?
  • If yes, refer the claim to the rating activity.
  • If no, go to Step 3.
3
  • Send a follow-up request to the employer(s) for VA Form 21-4192, allowing an additional 15 days for response, and
  • notify the Veteran that it is ultimately the Veteran’s responsibility to obtain this information.
 
Notes:
  • If the information on VA Form 21-4192 only states that the Veteran retired, then request additional information as to whether the Veteran’s retirement was by reason of disability.  If so, ask the employer to identify the nature of the disability for which the Veteran was retired.
  • Do not deny an IU claim solely because an employer failed to return a completed VA Form 21-4192.
  • If the Veteran worked for a federal agency, treat the VA Form 21-4192 development as a request for federal records and follow the guidelines prescribed under M21-1, Part III, Subpart ii, 1.A.1.b.
  • If an employer responds to the VA Form 21-4192 by providing a website that does not provide all the required information in the form, follow-up with the employer and again request that the VA Form 21-4192 be completed, allowing an additional 10 days for response.

VIII.iv.3.B.3.d.  Self-Employment Development

  
Development to produce the evidence necessary to establish the degree to which an SC disability has impaired the Veteran’s ability to engage in self-employment must generally be more extensive than development in cases in which the Veteran worked for others.
 
Request that the Veteran furnish a statement regarding the
  • types of work performed
  • number of hours worked per week, and
  • amount of time lost in the previous 12 months due to SC disabilities.

4.  Other IU Development Procedures

Introduction

  
This topic contains other development procedures for IU claims, including

Change Date

  
July 29, 2021

VIII.iv.3.B.4.a.  When to Obtain SSA Records in IU Claims

  
Obtain and consider complete copies of the Social Security Administration (SSA) decision (awards and denials) and any supporting medical records when
  • evidence of record is insufficient to award IU, and
  • evidence of a past or present claim for and/or award of disability benefits by SSA is shown in
    • the Veteran’s claims folder, or
    • any VA system including, but not limited to, Share (using the SSA INQUIRY command).
Notes:
  • Although decisions by SSA regarding a Veteran’s unemployability are not controlling for VA determinations, SSA’s record may indicate the level of impairment of the Veteran’s SC disability.
  • When reviewing SSA records, pay close attention to what disability resulted in an award of SSA benefits, and whether that disability is one for which SC has been awarded.
  • Regional offices (ROs) are not required to request SSA records when a Veteran fails to return the VA Form 21-8940.
References:  For more information on

VIII.iv.3.B.4.b.  When to Obtain VR&E Records in IU Claims

  
Obtain and evaluate any already-existing records of Veteran Readiness and Employment (VR&E) Service consultation
  • when the evidence indicates that the Veteran underwent VR&E consultation sometime in the past related to a prior vocational rehabilitation/employment (VR&E) claim, such as (but not limited to)
  • when the evidence of record is insufficient to award IU, and
  • without regard to the period of time that has passed since the VR&E consultation occurred and records were created.
The VR&E records may
  • document the Veteran’s participation in a training program, or
  • show that training was not feasible or was unsuccessful.
Notes:
  • The entire Counseling/Evaluation/Rehabilitation (CER) folder is not necessary to adjudicate IU claims that are processed at the RO.  If adjudicating a claim for IU, and the Veteran has an existing VR&E record, a completed VA Form 28-1902b, Counseling Record – Narrative Report, and VA Form 28-1902f, Feasibility Determination—Narrative Report, need only be in the record in lieu of the entire CER folder.  VA Form 28-1902b and VA Form 28-1902f contain the necessary information concerning the impact of the Veteran’s SC and NSC conditions on employability.
  • If a paper CER folder has evidentiary value that pertains to the pending claim and there is a need to scan the contents of the folder, send a photocopy of the folder to the scanning vendor and retain the original CER folder and its contents at the RO.
  • The entire CER folder must be of record when adjudicating Board of Veterans’ Appeals (BVA) remands.  BVA is able to contact the RO directly to request upload of the entire CER folder into VBMS if it is not already a part of the claims folder.
  • ROs are not required to request VR&E records when a Veteran fails to return the VA Form 21-8940.
References:  For more information on

VIII.iv.3.B.4.c. Considering IU Claims for National Guard and Reservists

  
If a Veteran is currently serving in the National Guard or Reserves, the reviewer should
  • determine if a medical examiner has indicated that a Veteran is unable to perform military duties due to an SC disability(ies), and
  • make sure that the latest service treatment records are of record, as such records may aid in determining if the disability is preventing the Veteran from performing current National Guard or reserve duties.
If the evidence of record is not sufficient to award increased compensation based on IU, request that the unit commander complete and return VA Form 21-4192.
  
Note:  The VBMS Initial Private 3rd Party Employer Letter, 21-4192 does not allow the user to edit the salutation section of the letter.  To ensure that the request is routed to the unit commander, include “ATTN Unit Commander” in the Employer Name section following the unit designation.
 
Example:  334th Brigade Engineer Battalion ATTN Unit Commander