Citation Nr: 18149325 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 13-22 011 DATE: November 9, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to September 17, 2015, is denied. FINDING OF FACT The evidence of record fails to demonstrate that the Veteran’s service-connected disabilities rendered him unable to secure or follow gainful employment prior to September 17, 2015. CONCLUSION OF LAW The criteria for a TDIU prior to September 17, 2015, are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2008 to August 2011. In October 2018, the Veteran submitted a Rapid Appeals Modernization Program (RAMP) opt-in election form. However, the issue on appeal was already certified and activated at the Board prior to receipt of the RAMP opt-in election form. As such, he is not eligible for the RAMP program for the issue on appeal. Following the August 2018 supplemental statement of the case, the Veteran submitted additional evidence in support of his appeal without a waiver of agency of original jurisdiction (AOJ) consideration; however, since the Veteran’s Form 9 was received after February 2, 2013, a waiver of review by the AOJ was not required. See § 501, Public Law No. 112-154; 126 Stat. 1165; 38 C.F.R. § 20.1304 (2017). Entitlement to a TDIU prior to September 17, 2015 To establish entitlement to TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the veteran’s service connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2006); Van Hoose v. Brown, 4 Vet. App. 361 (1993). Total disability ratings for compensation may be assigned, in circumstances where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). Effective August 23, 2011, the day after the Veteran was discharged from active duty, he has been service connected for the following: posttraumatic stress disorder (PTSD), rated as 70 percent disabling; traumatic amputation of the tip of the longer finger status post distal phalanx fracture and surgical repair left hand, rated as 10 percent disabling; left shoulder strain, rated as 10 percent disabling; degenerative changes thoracolumbar spine, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; tendinosis of the quadricep right knee, rated as noncompensable; residual scar status post amputation and surgical repair left long finger, rated as noncompensable; and scar dorsal left phalanx third finger, rated as noncompensable. His combined disability rating prior to September 17, 2015, was 80 percent. Therefore, the Veteran met the schedular criteria for a TDIU prior to September 17, 2015, and the remaining inquiry, therefore, is whether the Veteran was unable to secure or follow substantially gainful employment due solely to his service-connected disabilities during that period. The evidence of record includes a July 2013 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, in which the Veteran reported that he last worked from August 2011 to January 2012 in construction, that he worked an average of ten to twenty hours per week in January 2012, and that his highest monthly income was $1200.00. However, the evidence of record includes evidence that the Veteran continued to work after January 2012. For example, during an April 2012 VA examination, the Veteran stated that he worked intermittently as a handyman with his mother’s ex-husband. During a September 2015 VA examination, the Veteran stated that he worked as a handyman from late 2013 until just before Christmas 2014. Subsequent to working as a handyman, he stated he worked a construction job for a couple of months and setting staircases for four or five months until June 2015. In accordance with the Board’s April 2017 remand, the AOJ sent the Veteran a letter requesting that he complete a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, as well as a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit, for any employers. The Veteran did not respond with the requested information. In May 2018, the Board once again remanded the appeal to obtain clarification from the Veteran concerning his employment history and earnings from January 2012 to September 2015 in order to make a determination regarding his eligibility for TDIU prior to September 17, 2015. Within the month, the AOJ sent the Veteran a letter requesting his employment history and earnings from January 2012 to September 2015. The Veteran was asked to complete a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, as well as a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit, for each of the employers identified on VA Form 21-8940. To date, the Veteran has not responded with the requested information. In October 2018, the Veteran submitted a copy of a Social Security Administration (SSA) letter that indicated that he had been awarded SSA disability benefits in November 2017 due, in part, to his service-connected PTSD. Notably, the letter indicates that the Veteran alleged to SSA that the onset of his disability was September 17, 2015, which is also the effective date for his current TDIU award. In this case, despite repeated requests for evidence in support of his claim, the Veteran has not provided specific information concerning his employment prior to September 17, 2015—on VA Form 21-8940 or any other submission. As the Veteran has not provide the information requested, VA’s efforts have been frustrated in developing the Veteran’s TDIU claim and obtaining necessary information to make a determination as to whether he is unemployable for purposes of a TDIU—to include whether any employment during the period under review was marginal employment, or in a protected environment. The duty to assist in the development and adjudication of his claim is not a one-way street. If a veteran wishes help, he cannot passively wait for it in circumstances where he may or should have evidence that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193, reconsideration denied, 1 Vet. App. 406 (1991) (per curiam). Although the Veteran stipulates to VA that he was unemployable prior to September 17, 2015, he indicated to the contrary on his claim for SSA benefits, where he alleged disability since September 17, 2015. Medical evidence of record confirms that the Veteran worked at times prior to September 17, 2015. Without additional information from the Veteran regarding the nature of his employment and his income, the Board is unable to make a finding that the Veteran was unable to secure or follow a substantially gainful occupation as a result of a service-connected disability or disabilities prior to September 17, 2015. Thus, his claim of entitlement to a TDIU prior to September 17, 2015, must be denied. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD James R. Springer, Associate Counsel