Citation Nr: 18141161 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-31 112 DATE: October 9, 2018 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to June 1, 2016, is dismissed. FINDING OF FACT In July 2013 and again in January 2014 the Veteran was sent a VA Form 21-8940 (Application for Increased Compensation based on Unemployability) for completion; she was advised that the information sought in the form was needed for adjudication of her claim for a TDIU rating; to date she has not responded to the requests. CONCLUSION OF LAW By failing to provide information needed to properly adjudicate her claim for a TDIU rating within a year following VA’s request for the information, the Veteran has abandoned such claim, and the appeal in the matter must be considered abandoned. 38 U.S.C.§§ 5107, 7105(d)(5); 38 C.F.R.§ 3.158 (a). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from October 1988 to January 2011. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision. [From June 1, 2016 the Veteran’s service connected disabilities are rated 100 percent, combined, rendering entitlement to a TDIU rating from that day moot.] Entitlement to a TDIU rating prior to June 1, 2016 is dismissed. When evidence or information 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 be considered abandoned. 38 C.F.R. § 3.158 (a). A claim for TDIU is a claim for increase. A July 2013 report of telephone contact notes that the Veteran had inquired about establishing a claim for a TDIU rating, and that she was sent a VA Form 21-8940 (application for TDIU). A January 2014 VCAA notice letter advised the Veteran that an attached VA Form 21-8940 was part of the TDIU application process, and asked her to complete and submit such form. She did not respond/submit the form. The May 2014 rating decision on appeal noted that the Veteran had not submitted a TDIU application (she was provided a copy of the decision with the denial notice letter). The June 2016 SOC in this matter again advised her that her claim for a TDIU rating was denied because she had not submitted a VA Form 21-8940 (without which her employment history could not be determined); she was offered further opportunity to submit the form, and did not do so. The complete accurate history of her employment during the period under consideration remains unknown. The critical facts at this stage are clear: By failing to submit a completed VA Form 21-8940, as VA repeatedly requested, the Veteran has not provided information necessary for VA to properly adjudicate a TDIU claim. The duty to assist is not a one-way street; the Veteran may not passively wait for assistance when her cooperation is needed for evidentiary development critical to a claim for VA benefits. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board finds that the Veteran’s failure to cooperate with VA’s efforts to obtain information critical in this matter has frustrated VA’s attempts to ascertain her employability (during the period remaining for consideration). As a direct consequence of her failure to cooperate, the Board is presented with an incomplete disability picture, inadequate for a proper merits adjudication of this matter. The controlling regulation in such circumstances is clear and unambiguous: it mandates that the claim “will be considered abandoned.” See 38 C.F.R. § 3.158 (a) (emphasis added); see also Hurd v. West, 13 Vet. App. 449, 452 (2000). The U.S. Court of Appeals for Veterans Claims 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 (2012). Hence, the Board has no recourse but to conclude that the Veteran has abandoned the TDIU claim. See Hyson v. Brown, 5 Vet. App. 262 (1993). As the claim seeking TDIU is abandoned, there is no allegation of error in fact or law for appellate consideration in the matters; accordingly, the appeal in the matter must be dismissed. 38 U.S.C. § 7105 (d)(5). GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Staskowski, Associate Counsel