Citation Nr: 21002850 Decision Date: 01/15/21 Archive Date: 01/15/21 DOCKET NO. 16-35 737A DATE: January 15, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDING OF FACT The Veteran did not return a completed VA Form 21-8940 (Application for TDIU) to support the claim and there is no competent and credible evidence of record demonstrating that he is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. CONCLUSION OF LAW The criteria to establish entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1968 to July 1970. This appeal ensued from a November 2012 rating decision that increased the Veteran’s disability rating to 10 percent for both the right and left knee disabilities. In November 2019, the Veteran and his spouse testified in a videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. The issues on appeal were previously remanded by the Board in January 2020 and September 2020 and have since returned for further appellate consideration. TDIU—Laws and Analysis Total disability ratings for compensation may be assigned, 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 as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a); see also 38 C.F.R. §§ 3.340, 3.341. To meet the requirement of “one 60 percent disability” or “one 40 percent disability,” the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In this case, service connection is in effect for right and left knee degenerative arthritis and instability. The disabilities impact both lower extremities and are considered one disability for TDIU purposes. In addition, the bilateral factor applies. The Veteran has “one” service-connected disability rated as 60 percent disabling and therefore meets the minimum schedular requirements for TDIU benefits. 38 C.F.R. § 4.16 (a). In compliance with the September 2020 Board Remand directives, the AOJ informed the Veteran of what evidence was needed to establish entitlement to a TDIU and enclosed a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) and VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefit). See September 2020 VA notice letter to Veteran. The AOJ asked the Veteran to return the completed forms to VA. The AOJ provided a copy of the letter to the Veteran’s representative. To date, the Veteran has not returned either form, nor has he or his representative made any assertions regarding entitlement to a TDIU. Moreover, the current evidence of record appears to show that the Veteran has been employed throughout the rating period on appeal. For example, an August 2016 VA treatment record indicated that the Veteran was working in a junkyard. In a February 2018 VA treatment note, the Veteran was noted to be a “VHA employee.” In a May 2020 VA treatment note, the Veteran was tested for COVID-19 as an “employee” had tested positive for the same disease. A November 2014 VA mental health note indicated that the Veteran was working at VA “for the last 14 years.” Unfortunately, because the Veteran did not submit a completed VA Form 21-8940 and no further information on his employment and educational history has been provided, the circumstances of his employment, including any current employment, are unclear. While failure to complete the form is not fatal to a TDIU claim in and of itself, the failure to do so deprives the Board of information as to the Veteran’s employment history, educational history and training, and income information necessary to properly address a claim for TDIU. Because the Veteran has not cooperated with VA’s attempt to develop the claim for a TDIU, and has not provided the information requested to permit adequate adjudication of the TDIU claim, the Board cannot conclude that he has been unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities at any time during the appeal period. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that the duty to assist is not a one-way street; if a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence). Moreover, the current evidence of record appears to show that the Veteran has remained employed throughout the rating period on appeal. As the Veteran is not shown to be unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities, the claim of entitlement to TDIU must be denied. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei, 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.