Citation Nr: 20050119
Decision Date: 07/28/20	Archive Date: 07/28/20

DOCKET NO. 18-32 951
DATE: July 28, 2020

ORDER

Entitlement to a total disability evaluation based on individual unemployability due to the veteran’s service- connected disabilities (TDIU) is denied.

FINDING OF FACT

The Veteran was employed during the pendency of the appeal, failed to provide additional evidence necessary to adjudicate the claim for entitlement to a TDIU, and indicated that he did not wish to claim entitlement to a TDIU.

CONCLUSION OF LAW

The criteria for an award of TDIU are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16(a)(b) (2019).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from March 1999 to March 2007.

In March 2020, the Board raised and remanded a claim for entitlement to a TDIU.

Entitlement to a TDIU

In its March 2020 decision, the Board granted a 50 percent rating for the Veteran’s headache disability and raised the issue of entitlement to a TDIU per the Court’s holding in Rice v. Shinseki, 22 Vet. App. 447 (2009).  In this regard, the Board noted that there was evidence within the record that the Veteran has been employed but that it was unclear whether such employment was marginal in nature or not (i.e. how many hours he worked and how much time off he actually took).  On remand, the Board requested the RO to obtain additional evidence from the Veteran, to include a completed VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability.

Subsequent to the Board’s remand, the RO attempted to obtain this information from the Veteran; however, he failed to respond and did not submit any additional evidence pertaining to his employment.  Significantly, a Report of General Information dated on July 9, 2020, indicated that the Veteran reported that he did not have any additional information or evidence to submit and while he understood that the undersigned raised the issue of entitlement to a TDIU and requested the aforementioned development, he never “sought or claimed” TDIU. 

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Here, the evidence shows that the Veteran was employed during the pendency of the appeal, failed to provide necessary evidence to substantiate the claim for entitlement to a TDIU that was raised by the Board, and indicated that he did not wish to claim TDIU.  Therefore, the TDIU claim on appeal must be denied as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

 

 

S. B. MAYS

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	A. Yaffe, 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.