Citation Nr: 1803770 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 13-09 613 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). ATTORNEY FOR THE BOARD M. Galante, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 2006 to December 2009, including service in Afghanistan from July 2008 to May 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision issued by the United States Department of Veteran Affairs (VA) Regional Office (RO) in Togus, Maine. (also referred to as Agency of Original Jurisdiction (AOJ)). See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); see also March 2015 Board decision. FINDING OF FACT In both August 2016 and in September 2017 (pursuant to the Board's remand instructions), the Veteran was asked to complete and submit an updated VA Form 21-8940, "Application for Increased Compensation Based on Unemployability" to secure information necessary to properly adjudicate his claim for a TDIU. More than one year has passed since VA's August 2016 request, which was sent to the Veteran's current address of record. He has not provided the completed form. CONCLUSION OF LAW By failing to submit an updated VA Form 21-8940 to obtain critical information needed to properly adjudicate his claim for a TDIU within one year from the VA's August 2016 request, the Veteran has abandoned his claim, and his appeal in this matter must be dismissed. 38 U.S.C. § 7105(d)(5) (2012); 38 C.F.R. § 3.158(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable the Veteran to understand the precise basis for the Board's decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (CAVC). 38 U.S.C. § 7104(d)(1) (2012); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the CAVC has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra. I. AOJ Compliance with the Board's September 2017 remand decision This matter was previously before the Board in September 2017, at which time it was remanded for further evidentiary development. In particular, the AOJ was directed to obtain updated VA treatment records and to provide the Veteran with VA Form 21-8940 to solicit additional information regarding his work and educational history. Review of the electronic claims file shows the Veteran's updated VA treatment notes were associated with the electronic claims file. In September 2017, the AOJ provided the Veteran VA Form 21-8940 along with a letter informing him of pertinent instructions to complete the form in compliance with the Board's September 2017 remand decision. He was told he "must submit this form" and was warned that failing to do so would result in abandonment of his claim under 38 C.F.R. § 3.158(a). To date, the Veteran has not submitted an updated VA Form 21-8940. In this case, the information that would have been provided on a completed VA Form 21-8940 would have been relevant to the claim for entitlement to a TDIU, but the Veteran did not provide the required information. Thus, the Board finds that the lack of this information is not due to any inaction by the Board or the AOJ. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). II. Legal criteria, factual background, and analysis regarding abandonment of claim Where the evidence requested in connection with an original claim or a claim for increase is not furnished within one year after the date of the request, the claim will [emphasis added] be considered abandoned. 38 C.F.R. § 3.158(a) (2017). As noted in the Board's September 2017 remand decision, the Veteran's post-service employment history is clear until May 2013 when the evidence shows that the Veteran was employed as a chef. See, e.g., August 2013 VA Form 21-8940 (wherein the Veteran indicated he last worked full-time as a chef in May 2013); see also October 2013 VA Form 21-4192 (wherein a former employer, Lions Pride, indicated the Veteran last worked in May 2013 as a cook). However, after May 2013, the Veteran's employment history is very unclear. See, e.g., August 2013 VA Form 21-8940 (indicating the Veteran was enrolled in college); September 2013 VA treatment record (noting the Veteran was in school studying business management); cf. July 2014 VA treatment record (noting the Veteran works in landscaping and starting a new job in a week at a restaurant as a chef); March 2016 VA treatment record (noting the Veteran was employed as a chef at Fuel); May 2016 VA treatment record (noting the Veteran was employed as a chef); November 2016 VA Social Work and Industrial Survey (noting the Veteran was last employed for one month in 2016 as a Chef with Ebinezer's Brew Pub). Consequently, in March 2015, the Board inferred a claim for a TDIU under Rice and remanded the claim to the AOJ with instructions requesting that the Veteran complete and submit an updated VA Form 21-8940 outlining his educational and employment history. A letter was mailed to the Veteran requesting that he complete and return a VA Form 21-8940 in April 2015. However, due to confusion over the Veteran's address, in February 2016, the Veteran reported he was unsure if he had received the letter, and confirmed his current address. See February 2016 VA Form 27-0820. The April 2015 letter was therefore re-mailed to the Veteran in February 2016; no response was received. In June 2016, the Board again remanded the claim with instructions for the Veteran to complete and submit an updated VA Form 21-8940. In August 2016, the Veteran updated his address through a telephone conversation with VA. See August 2016 VA Form 27-0820. Thereafter, in August 2016, another letter was mailed to the Veteran at this new address requesting that he complete and return an enclosed VA Form 21-8940. Again, there has been no response to this letter. For the purposes of analyzing abandonment under 38 C.F.R. § 3.158(a), the Board considers the VA's August 2016 request that he complete and submit VA Form 21-8940 to be the starting point for the one year period considered by the regulation. While the AOJ sent VA Form 21-8940 to the Veteran on multiple occasions prior to August 2016, as outlined above, it is unclear whether the Veteran ever received those correspondences. However, the Board assumes that the Veteran has received the VA's August 2016 request and subsequent notices, requests, or Board decisions as the record shows these documents were mailed to the address the Veteran explicitly provided in August 2016, which remains current and active in VA's databases. There is no evidence in the electronic claims file that any notices, requests, or Board decisions mailed to the Veteran's active address from August 2016 forward were ever returned to VA as undeliverable. This appeal returned to the Board in September 2017, at which time it was remanded to provide the Veteran a final opportunity to submit an updated VA 21-8940. In the Board's remand decision, it was reiterated that the Veteran has a duty to cooperate in the development of his claim. Wood v. Derwinski, 1 Vet. App. 191 (1991) (noting that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.") The Veteran was also cautioned that failure to provide the requested information would result in the claim being considered abandoned. See Hurd v. West, 13 Vet. App. 449, 452 (2000) (when the RO requests additional evidence and the appellant does not respond within one year, the claim is considered abandoned under 38 C.F.R. § 3.158); Wamhoff v. Brown, 8 Vet. App. 517, 521-22 (1996) (when an appellant does not furnish the requested evidence within the specified one year of the request, the RO is required, by VA regulations, to consider the claim abandoned). The AOJ mailed a letter to the Veteran in September 2017 requesting that he complete VA Form 21-8940 and detailing the consequences if he failed to respond. To date, the Veteran has not responded. The critical facts at this stage are clear-the Veteran has not provided an updated VA Form 21-8940 necessary for VA to properly adjudicate his claim for a TDIU and more than one year has passed since the VA's August 2016 request for such information. The Veteran was provided an additional opportunity to submit the requested form in September 2017, yet he still has not responded. The Board finds that the Veteran's failure to cooperate with VA's efforts to secure necessary evidence in this matter frustrates VA's attempts to ascertain his complete educational and employment history. As a direct consequence of his failure to cooperate, the Board is presented with an incomplete picture that is inadequate for a proper merits adjudication of this matter. The controlling regulation in such circumstances (of which the Veteran was expressly informed) is clear and unambiguous; it mandates that the claim "will be considered abandoned." See 38 C.F.R. § 3.158(a) (2017); see Hurd, 13 Vet. App. at 452. Notably, the Court has held that VA regulations are "binding on all who seek to come within their sphere," regardless of whether an appellant has knowledge of such regulations. See Jernigan v. Shinseki, 25 Vet. App. 220, 231 (2012). Hence, the Board has no recourse but to conclude that the Veteran has abandoned his claim, and consequently his appeal in this matter. As the Veteran's claim for a TDIU is abandoned, there is no allegation of error in fact or law for appellate consideration in this matter; accordingly, this appeal must be dismissed. 38 U.S.C. § 7105(d)(5) (2012). III. VA's duties to notify and assist The Veteran has not raised any issues with the duty to notify or the duty to assist in providing VA medical examinations. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. Regarding VA's duty to assist in obtaining documentary evidence, the record contains updated VA treatment records and information regarding the Veteran's educational and employment history, to the fullest extent possible. As discussed extensively above, the Veteran has not completed an updated VA Form 21-8940 as requested by VA on numerous occasions. The AOJ has exhausted all efforts to obtain a completed VA Form 21-8940 from the Veteran. Given the circumstances, VA has met its assistance obligations regarding obtaining relevant documentary evidence. No further assistance is required and VA's duty to assist has been satisfied in this regard. ORDER The appeal seeking entitlement to a TDIU is dismissed. ____________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs