Citation Nr: 21001699 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 10-08 824 DATE: January 11, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (“TDIU”) due to the Veteran’s service-connected disabilities is denied. FINDINGS OF FACT 1. A completed VA Form 21-8940 for substantiating the TDIU claim has not been provided by the Veteran or his representative despite two requests from the Department of Veterans Affairs. 2. A preponderance of the evidence of record is against a finding that the Veteran’s service-connected disabilities have rendered him unable to secure or follow substantially gainful employment. CONCLUSION OF LAW The criteria for an entitlement to TDIU due to the Veteran’s service-connected disabilities have not been met. 38 U.S.C. §§ 5103, 5107; 38 C.F.R. §§ 3.159, 3.340, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is a Veteran who served in active duty from March 1991 to March 1995. This matter comes before the Board of Veterans’ Appeals (“Board”) on appeal from March 2009 and March 2011 rating decisions issued by the Department of Veterans Affairs (“VA”) Regional Office (“RO”). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in June 2014. A transcript of the hearing is associated with the record. In February 2016, the RO requested the Veteran to complete and submit the application form for a claim of an entitlement to TDIU (VA Form 21-8940), however the Veteran did not complete and submit the application form. Hence, the Board remanded the matter in August 2020 to provide the Veteran with another opportunity to complete and submit the TDIU application form. The RO completed the development and readjudicate the claim, and the matter has been returned to the Board for appellate consideration. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds there has been substantial compliance with its August 2020 remand directives. See Stegall, 11 Vet. App. at 271; See also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only “substantial” rather than strict or exact compliance with the Board’s remand directives is required under Stegall). Entitlement to a total disability rating based on individual unemployability (“TDIU”) due to the Veteran’s service-connected disabilities is denied. The Veteran has established service connection for a major depressive disorder with anxious distress, rated as 70 percent disabling; headaches, rated as 30 percent disabling; a cervical strain with degenerative changes, rated as 10 percent disabling; right knee patellofemoral osteoarthritis, rated as 10 percent disabling; left knee osteoarthritis, rated as 10 percent disabling; left hip osteoarthritis, rated as 10 percent disabling; right hip osteoarthritis, rated as 10 percent disabling; bilateral vitreous floaters in the left eye, rated as noncompensable; and a skin disorder, also rated as noncompensable. His combined rating is 90 percent. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. §§ 3.340(a)(1), 4.15. Different factors such as nature of service-connected disabilities, employment history, education and vocational attainments of a veteran need to be considered for adjudicating a TDIU claim. See 38 C.F.R. § 4.16(b). In Ray v. Wilkie, the Court defined the term “unable to secure and follow a substantially gainful occupation” as having two components: one economic and one noneconomic. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The non-economic component includes consideration of the following: the Veteran’s history, education, skill, and training; whether the Veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the Veteran has the mental ability to perform the activities required by the occupation at issue. Id. TDIU can either overtly stated or implied by a fair reading of the claim or of the evidence of record. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Entitlement to a TDIU should be considered based on the appealed increased rating claim. See Rice 22 Vet. App. at 453 (noting that a claim for a TDIU rating is part of an increased rating claim when such a claim is raised by the record). In its September 2014 decision, the Board inferred the implied TDIU claim due to the Veteran’s service-connected disabilities from the record and remanded the matter and directed the RO to send appropriate notice to the Veteran to complete the TDIU application for substantiating the claim. Consequently, the RO sent a notice to the Veteran in February 2016 and provided the applicable VA Form 21-8940 under 38 U.S.C. § 5103 for completing and submitting the form to substantiate the TDIU claim. The Board remanded the issue of TDIU along with other issues again in December 2018 because TDIU claim was inextricably intertwined with other issues on appeal. Since the Veteran did not complete or file the application form, the Board remanded the matter third time in August 2020 in order to provide another opportunity to the Veteran for completing and submitting TDIU application form. The Board notes that the RO sent a notice to the Veteran along with the TDIU application form (VA Form 21-8940) again in September 2020 and notified the Veteran that a decision may be rendered if the Veteran would not respond within 30 days. The record indicates that the Veteran did not complete or submit the TDIU application form, hence the RO denied the claim and issued a supplemental statement of the case in October 2020 and returned the matter to the Board for appellate consideration. A fully completed VA Form 21-8940 provides the required information for developing and adjudicating a TDIU claim. The Veteran did not return a completed form which would have provided VA with the information needed to contact and obtain evidence from the Veteran’s prior employer(s). See 38 C.F.R. § 3.159(c)(1)(i) (a claimant must cooperate fully with VA’s reasonable efforts to obtain relevant records and provide enough information to identify and locate the existing records). VA cannot fully develop the claim without the help of the Veteran. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that “[t]he duty to assist is not always a one-way street.” If a veteran wishes help with his claim, he must cooperate with VA’s efforts to assist him). Without a completed VA Form 21-8940, the Board is left to decide the TDIU claim based on the available evidence of record. During June 2014 Board hearing, the Veteran stated that he is losing time from his current work and lost his previous job because of service-connected disability of headache. He further stated the he took several days off from work due to knee issues. However, the Veteran also confirmed that he had not been to the emergency room (ER) or hospitalized due to service-connected disabilities. In his March 2009 notice of disagreement, the Veteran stated his pain was affecting his work. In his June 2014 statement, in support of the claim, the Veteran stated he is unemployed as of May 28, 2014 because the employer could not accommodate him due to his service-connected disabilities, but no supporting documentation was provided. As for the Veteran’s work history, the evidence of record shows that the Veteran has been doing different jobs during the appeal period. VA medical record from October 2008 shows the Veteran was working at a local car dealership. January 2009 VA examination indicates that the Veteran was working as a diesel mechanic and missed work only two to three-time during past 12 months due to headache and neck pain. VA treatment record from April 2010 depicts that the Veteran was working as a heavy equipment mechanic and indicated that he was a little slow but did his job efficiently. VA treatment record from September 2010 indicates that the Veteran was doing well at work. Per VA treatment record from December 2010, the Veteran had been working as a mechanic for 5 to 10 years and lost one week of work within the past 12 months. The May 2014 VA treatment record notes that the Veteran was working at a home improvement store, and according to September 2014 record he was working at a brewing company and taking real estate courses. VA examination from March 2017 shows the Veteran had been working as a technician at Budweiser for two and half year and did not have any difficulties with job performance. As for indication of functional impact of the Veteran’s service-connected disabilities on his work, the VA examinations from September 2018 indicate that the Veteran’s hip disability might impact his work but not knee or headache disability. However, the October 2019 VA examination notes the Veteran’s headache disability can impact his ability to work but not knee or hip disability. As for the Veteran’s educational history, the evidence of record from 2012 to 2016 indicates that the Veteran attended Front Range Community College, Fort Collings, Colorado to obtain Associate of Arts degree for vocational rehabilitation, but it is not clear whether the degree was completed. The above evidence including the Veteran’s statements demonstrate that the Veteran’s service-connected disabilities might cause some functional impairment, but it has not risen to the level that the Veteran is unable to secure or follow substantially gainful employment. As indicated above, the Veteran had been performing different jobs well and did not miss many days from work because of service-connected disabilities. As noted above, the record does not include a completed TDIU claim form, despite the Board remands and the RO efforts to obtain a completed TDIU form from the Veteran twice, once in February 2016 and second in September 2020. As a result, the Board is not clear as to the Veteran’s current employment status and other key pieces of information required for substantiating the TDIU claim. However, after reviewing the evidence of record, the Board concludes that the Veteran’s service-connected disabilities might have impacted his ability to work, but they do not seem to preclude all substantially gainful employment for the Veteran based on his educational and occupational history per evidence of record in the claims file. In reaching this conclusion, the Board is hampered by the lack of a completed VA Form 21-8940 and information regarding the Veteran’s education, employment history, or earnings. Although the Board can piece together some of his employment information from various treatment records found in the claims file, the Veteran has never provided VA with specific information regarding his employment, education, and training that is usually found in a completed VA Form 21-8940. It is the Veteran’s responsibility under 38 U.S.C. § 5107(a) to present and support a claim for VA benefits. See Skoczen v. Shinseki, 564 F.3d 1319, 1323 (Fed. Cir. 2009) (the “support” requirement of section 5107(a) obligates the claimant to provide some evidentiary basis for his or her benefits claim). The Veteran has not met this burden here. A TDIU claim may be granted, based on schedular criterion, where a veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or higher. See 38 C.F.R. § 4.16(a). The Board notes that the Veteran is presently in receipt of a combined rating of 90 percent with at least one disability ratable at 40 percent or higher, which meets the schedular numeric criterion needed under 38 C.F.R. § 4.16(a), for an award of a TDIU, however, as noted above, the evidence of record does not demonstrate that the Veteran’s service-connected disabilities have rendered him unable to secure or follow substantially gainful employment. A preponderance of the evidence must be against the claim for benefits to be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board notes that the Veteran indicated in a statement in support of his claim that he lost one job due to service-connected disability, but he did not provide any supporting evidence since the TDIU form was not completed. Also, the Board notes that the Veteran’s statements to examiners for treatment purposes have indicated that he has been doing fairly well at his jobs. The Board concludes the medical evidence and the Veteran’s statements to medical examiners have greater evidentiary and probative value than the Veteran’s statements to VA in support of his claim. Consequently, an entitlement to TDIU due to the Veteran’s service-connected disabilities is denied because of the Veteran and his representative’s failure to cooperate with VA for substantiating the claim, and a preponderance of the evidence of record is against a finding that the Veteran’s service-connected disabilities have rendered him unable to secure or follow substantially gainful employment. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Tariq, Nadeem, Associate Attorney 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.