Citation Nr: 1751490	
Decision Date: 11/09/17    Archive Date: 11/17/17

DOCKET NO.  13-03 698A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUE

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 


REPRESENTATION

Appellant represented by:	Byron Dinkla, Agent


ATTORNEY FOR THE BOARD

D. Ware, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Army from October to December 2006 and from April 2007 to December 2009.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.  In August 2016 and June 2017, the Board remanded the case for additional development, which has been completed.  The matter has since been returned to the Board for appellate review.

This appeal was processed using the Veterans Benefits Management System (VBMS). The Virtual VA electronic claims file contains documents that are either duplicative of the records in VBMS or irrelevant to the issue on appeal.


FINDING OF FACT

The Veteran has failed to meet his evidentiary burden that his service-connected disabilities, considering his education and work history, preclude him from obtaining and maintaining substantially gainful employment.


CONCLUSION OF LAW

The criteria for a TDIU have not been met.  38 U.S.C.A. §§ 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16, 4.19 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

Prior to the initial adjudication of the claim in August 2012, the RO satisfied its duty to notify the Veteran.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (b)(1). 

VA's duty to assist contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim.  38 C.F.R. § 3.159.  VA has done everything reasonably possible to assist the Veteran with respect to the claims for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c).  Relevant service treatment and post-service medical records have been associated with the claims file.  Also, the Veteran was afforded VA examinations which are fully adequate.  Moreover, the record reflects substantial compliance with the Board's August 2016 and June 2017 remands.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  The RO sent the Veteran VCAA notice letters in July 2014, September 2016, and August 2017, pursuant to 38 U.S.C.A. 5103(a) and 38 C.F.R. 3.159(b), advising him of the criteria needed to substantiate a TDIU. Additionally, the RO requested that the Veteran complete a VA Form 21-8940, Application for Increased Compensation Based on Unemployability, for the purpose of obtaining relevant employment information and a subsequent VA addendum medical opinion.  Hence, the duties to notify and to assist have been met.

Law and Analysis

VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of his service- connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience.  38 C.F.R. § 4.16.  The central inquiry is whether service-connected disabilities alone are of sufficient severity to produce unemployability.  Hatlestad v. Brown, 5 Vet. App. 524 (1993).  Consideration shall be given to the Veteran's level of education, special training, and previous work experience.  Neither nonservice-connected disabilities nor advancing age may be considered in the determination.  38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  

The law provides that a total disability rating for compensation based on a TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  38 C.F.R. §§ 3.340, 3.341, 4.16(a).  

The Board notes the Veteran was provided numerous VA Forms 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to include with the July 2014 and August 2017 notice letters.  To date, he has not responded or provided the requested information.  The duty to assist is not a one-way street; if a claimant wishes help in developing his or her claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining putative evidence.  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  In this case, because the Veteran did not respond to VA's request for additional information, the Board is constrained to find that he has not met his evidentiary burden for a TDIU, as the Veteran has not provided additional information about his education and prior work experience.  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that "[t]he duty to assist is not always a one-way street").  

The Board is grateful for the Veteran's honorable service.  However, the Secretary is not obligated to grant a claim for benefits simply because there is no evidence disproving it.  See 38 U.S.C. § 5107(a)("[A] claimant has the responsibility to present and support a claim for benefits . . . ."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009)(stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009)(interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA . . . the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination).  Given the record before it, the Board concludes that a TDIU is not warranted.

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ORDER

Entitlement to TDIU is denied.





____________________________________________
ANTHONY C. SCIRÉ, JR.
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs