Citation Nr: 19192586 Decision Date: 12/10/19 Archive Date: 12/10/19 DOCKET NO. 16-00 380 DATE: December 10, 2019 ORDER Entitlement to accrued benefits based on a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDING OF FACT By letters dated November 2018 and February 2019, the appellant was asked to provide information necessary to adjudicate her claim, to include submitting a completed VA Form 21-8940; more than one year has lapsed since the initial request, and she has not submitted the requested evidence and information. CONCLUSION OF LAW By failing to submit requested information and/or forms for critical evidence needed to properly adjudicate her claim, the appellant has abandoned such claim, and her appeal in this matter must also 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 Veteran served on active duty with the United States Army from September1968 to April 1970. The Veteran died in July 2010; his surviving spouse has been substituted as appellant in this case. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in September 2018, when it was remanded for additional development. When evidence requested in connection with an original claim or a claim for increase is not furnished within a year of the request, the claim will be considered abandoned. 38 C.F.R. § 3.158(a). Following the September 2018 Board decision, the RO informed the appellant that she may be entitled to compensation at the 100 percent rate if the Veteran was unable to secure and follow a substantially gainful occupation because of his service-connected disabilities. The letter further directed that “[i]f you believe you qualify, complete, sign, and return the enclosed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability.” See November 2018 other. The letter also included a section entitled “What the Evidence Must Show for Total Disability Rating Based on Individual Unemployability” detailing the legal and evidentiary requirements for a TDIU. In February 2019, the RO again informed the appellant that she may be entitled to compensation at the 100 percent rate if the Veteran was unable to secure and follow a substantially gainful occupation because of his service-connected disabilities. See February 2019 other. The appellant’s claim was denied by the RO in an April 2019 rating decision. The subsequent SSOC noted that the appellant was asked to submit a completed VA Form 21-8940. The SSOC states, “[a]s of this date, we have not received a complete VA Form 21-8940. This form is required to further consider your claim.” In its September 2018 decision, the Board found that there was insufficient evidence of record concerning the Veteran’s employment during the relevant period on appeal, and thus remanded the issue of entitlement to a TDIU for the RO to provide the appellant appropriate notice and develop the issue of entitlement to a TDIU, which includes requesting the appellant complete a VA Form 21-8940. See September 2018 BVA Decision. A VA Form 21-8940 asks a veteran which service-connected disability or disabilities prevent him from securing or following a substantially gainful occupation, and the treatment he has received for the disability(ies). The veteran is further asked to supply information about his employment, including dates when his disability(ies) affected full-time employment, the date the veteran last worked full-time, and the date the veteran became too disabled to work. VA Form 21-8940 also requests information regarding the veteran’s employment, educational, and training history, to include all employers for the last five years, the hours worked per week, the time lost from illness, the circumstances under which the veteran left his last job, and whether the veteran has attempted to obtain employment since he became too disabled to work. The critical facts at this stage are clear. The appellant has not provided the information or VA forms necessary for VA to adjudicate her claim. Although the record contains some information regarding the Veteran’s employment history, the appellant has not provided all of the information necessary to adjudicate her claim. The Board is presented with a less-than-complete evidentiary picture, made so by the appellant’s failure to cooperate. In such circumstances, proper adjudication on the merits is not possible. The governing regulation in this situation, 38 C.F.R. § 3.158(a), is clear and unambiguous, and mandates that the claim will be 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). Notably, the Court has held that even if an appellate is ignorant of the abandonment provisions of 38 C.F.R. § 3.158(a), VA regulations are “binding on all who seek to come within their sphere,” regardless of whether an appellant has actual knowledge of what is in the regulations. See Jernigan v. Shinseki, 25 Vet. App. 220, 229-30 (2012). Hence, the Board has no recourse but to conclude that because of her failure to cooperate the appellant has abandoned her claim. As such, the Board finds that the appeal must be denied. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Norwood, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.