Citation Nr: 1809731 Decision Date: 02/15/18 Archive Date: 02/27/18 DOCKET NO. 14-12 799 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to a total disability rating for individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from August to September 1982, November 1984 to March 1985, and November 1989 to December 1995. This appeal is before the Board of Veterans' Appeals (Board) from an October 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In addition to denying a TDIU, the decision denied a number of service connection claims; the service connection claims have since been granted in full and are no longer on appeal. In a December 1, 2017, letter, the Veteran's attorney indicated that an October 30, 2017, docketing letter was the first notice that he had received that the Veteran's file had been transferred to the Board. He thus requested that the date of the docketing letter serve as commencement of the 90 day limit for submission of additional argument or evidence. He requested that the Board allow the full 90 days from the date of the docketing letter prior to deciding the claim. The 90-day time period has now passed, and the Board will address the merits of the appeal. The Board also notes that on January 25, 2018, the Veteran filed a notice of disagreement with several initial ratings assigned upon grant of service connection in an October 2017 rating decision. However, as such recently appealed issues are being processed by the agency of original jurisdiction (AOJ), the Board will not take jurisdiction over them at this time. Furthermore, as discussed below, the Veteran currently meets the schedular rating requirements for a TDIU; the matter of a TDIU is being decided on a basis unrelated to his disability ratings. FINDING OF FACT The Veteran is not unable to secure or follow a substantially gainful occupation as a result of a service-connected disability or disabilities. CONCLUSION OF LAW The criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Total disability ratings for compensation based on individual unemployability 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). In determining whether an individual is unemployable by reason of service-connected disabilities, consideration must be given to the type of employment for which the veteran would be qualified. Such consideration would include education and occupational experience. Unemployability associated with advancing age or intercurrent disability may not be used as a basis for assignment of a total disability rating. 38 C.F.R. §§ 3.341, 4.19. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Here, the Veteran's service-connected disabilities are as follows: status post right total knee replacement with fusion, leg shortening, and scar, rated 50 percent; major depressive disorder, rated 50 percent; trochanteric pain syndrome of the right and left hips, each rated 10 percent; left knee strain, rated 10 percent; lumbar spine degenerative arthritis, rated 10 percent; and five other disabilities, each rated noncompensable (0 percent). The Veteran's combined rating for compensation is 90 percent. Thus, he meets the schedular rating requirements for a TDIU. On June 17, 2013, VA released a Fast Letter, the stated purpose of which was "to revise and clarify VA procedures relating to claims for total disability ratings based on individual unemployability (TDIU)." See VA Fast Letter 13-13 (June 17, 2013). The changes noted included the following: "VA will require the claimant complete and submit VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to substantiate the claim of TDIU"; "VA will administratively deny TDIU claims if VA requests, but the Veteran does not submit, required forms or evidence." Under the heading "Requirement for VA Forms 21-8940 and 21-4192," the following was stated: If a claim for TDIU has been expressly or reasonably raised by the evidence of record, but a current VA Form 21-8940 is not on file, provide it to the Veteran for completion. Before VA will consider a claim for IU ? the Veteran must complete a VA Form 21-8940, and ? the Veteran with multiple service-connected disabilities must specify one or more service-connected disabilities that he or she believes cause the unemployability. It was instructed that if the Veteran fails to complete and return the VA Form 21-8940, the claim would be denied. It was also noted that if the Veteran returned the VA Form 21-8940, the rating agency was to "send VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit, to the former employer(s) listed on the form for which the Veteran worked during his last year of employment." The following was also stated: "Note: 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." The June 17, 2013, VA Fast Letter changes were incorporated into the VA Adjudication Procedures Manual M21-1MR. Pursuant to that VA Manual, a substantially complete VA Form 21-8940 is required to establish entitlement to a TDIU 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 both attests to his/her employment status, and signals understanding of the TDIU 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 TDIU and recover TDIU compensation that is later discovered to have been awarded on fraudulent terms. M21-1, Part IV, Subpart ii, Chapter 2, Section F.2.b. The Manual further states: 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. Id. According to the Manual, VA is to deny entitlement to IU only if the facts demonstrate that the Veteran is not precluded from securing or following substantially gainful employment by reason of service-connected disability; is gainfully employed; or has failed to cooperate with development, such as failing to return a completed VA Form 21-8940 when requested. M21-1, IV.ii.2.F.4.k. In this case, in September 2009, the Veteran submitted a VA Form 21-8940 in connection with a claim for TDIU, which was denied in a January 2010 rating decision. The Veteran submitted a statement in June 2012 that he was again making a claim for a TDIU. In a February 2013 development letter in response his TDIU claim and other claims, the AOJ stated: "You may be entitled to compensation at the 100 percent rate if you are unable to secure and follow a substantially gainful occupation because of your service connected disabilities. If you believe you qualify, complete, sign, and return the enclosed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability." Enclosed with the letter was a VA Form 21-8940. The Veteran's TDIU claim was denied in an October 2013 rating decision, and the Veteran filed a notice of disagreement in November 2013. In March 2014, the AOJ issued to the Veteran and his attorney a statement of the case again denying a TDIU, and explaining the denial, in part, as follows: "In our letter dated February 6, 2013, we asked you to complete and return VA Form 21-8940. We never received your completed form, thus, we have no information regarding your employment history, when you last worked, and any attempts to obtain employment since you stopped working." The Veteran filed a substantive appeal of the TDIU issue in April 2014. He also submitted evidence, including medical evidence, in support of his claim, but did not submit a completed VA Form 21-8940. In an October 2017 supplemental statement of the case again denying the Veteran's claim for TDIU, the AOJ provided the following explanation: VA letters of February 6, 2013 and September 26, 2017 requested that you complete and return an updated VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. To date we have not received this completed form. Although the medical evidence suggests you can no longer work as a result of your service connected conditions and you meet the schedular requirements for individual employability, this benefit cannot be granted with a completed VA Form 21-8940. Therefore, entitlement to individual unemployability remains denied. Despite VA's repeated requests over a period of years for the Veteran to complete and submit an updated VA Form 21-8940, and explanation that a completed form is necessary to the development and substantiation of his claim for a TDIU, the Veteran has still not done so. The Veteran has been represented by an attorney since May 2012, for the entire pendency of the current TDIU claim, and his failure to complete and submit this form is without explanation. As noted by the AOJ, there is medical evidence of record suggesting significant occupational impairment, which is reflected in the Veteran's disability ratings. However, as the Veteran has not completed and returned an updated VA Form 21-8940, VA's efforts have been frustrated in adequately developing his TDIU claim and obtaining necessary information to make a proper determination as to whether he is unemployable for purposes of a TDIU. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (VA's duty to assist a claimant is not always a "one-way street," and a claimant seeking help cannot passively wait for it in those circumstances where he or she may or should have information that is essential in obtaining putative evidence). Therefore, the Board is unable to make a finding that the Veteran is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability or disabilities. Accordingly, a TDIU must be denied. ORDER Entitlement to a total disability rating for individual unemployability due to service-connected disabilities (TDIU) is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs