Citation Nr: 21004698 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 16-25 048 DATE: January 27, 2021 THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). ORDER The appeal is dismissed. FINDINGS OF FACT The Veteran failed to submit within one year of VA’s December 2019 request, a completed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, which would have provided critical information necessary to adjudicate the claim of entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). The evidence of record is insufficient to determine whether the Veteran has been rendered unable to obtain or maintain gainful employment due to his service-connected disabilities during the TDIU period. CONCLUSION OF LAW The issue of entitlement to a TDIU is considered abandoned, leaving no question of law or fact to decide regarding the TDIU issue. 38 U.S.C. §§ 501, 7105 (2012); 38 C.F.R. §§ 3.158, 20.204 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1968 to June 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2020 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In July 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing sitting in Oklahoma City, Oklahoma. A transcript of the hearing is of record. In the July 2019 Board hearing, the Veteran raised the issue of entitlement to a TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). In an October 2019 decision, the Board denied the Veteran’s claims for increased ratings for service-connected post-traumatic stress disorder (PTSD) and bilateral hearing loss disabilities and remanded the issue of entitlement to a TDIU in order allow the RO to further develop the claim. The Veteran was provided the notice and an opportunity to develop his claim for a TDIU, therefore, the Board finds there has been substantial compliance with its remand directives. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). Entitlement to a TDIU is dismissed. As noted above, in the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans’ Claims (Court) held, in substance, that every claim for an increased evaluation includes a claim for a total disability evaluation based on individual unemployability (TDIU) where the Veteran claims that his service-connected disabilities prevent him from working. In its October 2019 decision, the Board listed the raised TDIU claim as an issue, finding that the matter had been raised by the record. The Veteran has claimed that he is unable to work due to his service-connected hearing and psychiatric disabilities. 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. See 38 C.F.R. § 4.16. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is 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 at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In the Veteran’s case, service connection is in effect for the Veteran’s bilateral hearing loss disability 0 percent from December 18, 1980, 20 percent from February 26, 2013, 0 percent from April 14, 2016 and 20 percent from June 29, 2016; PTSD, 50 percent from May 1, 2013, 70 percent from June 6, 2016; tinnitus, 10 percent from November 15, 1996. The Veteran’s combined rating is 70 percent from June 6, 2016, and 80 percent from June 29, 2016, forward. Additionally, the Veteran has a single disability rated at more than 60 percent from June 6, 2016. Therefore, the Veteran meets the schedular criteria. The Veteran’s claims file does include some limited evidence of unemployability. In brief, the Veteran testified in July 2018 that his service-connected hearing and psychiatric disabilities made it difficult for him to work. The Veteran explained that while he attempted to return to work on some occasions during the period on appeal, his service-connected disabilities prevented him from obtaining and maintaining gainful employment. Additionally, June 2016 and July 2019 private psychiatric examinations indicate that the Veteran’s PTSD symptoms interfered with his ability to obtain and maintain gainful employment. However, the Veteran also testified that he was retired in the July 2019 Board hearing. Additionally, Veteran’s claims file does not contain the VA Form 21-8940 in connection with the Veteran’s claimed unemployability. In the Board’s prior remand directives from October 2019, the RO was instructed to develop the Veteran’s TDIU claim. The RO sent a VA Form 21-8940 to the Veteran in December 2019 and again in January 2020. The Board once again remanded the matter in order to afford the Veteran one additional chance to submit the requested information in a September 2020 decision, reminding the Veteran that the duty to assist was a not a one way street and that failure to cooperate in the development of his claim may result in the claim being considered abandoned. See 38 C.F.R. § 3.158 (“where evidence requested... is not furnished within 1 year after the date of request, the claim will be considered abandoned.”); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The RO sent a final VA Form 21-8940 to the Veteran in September 2020. To date, neither the Veteran, nor his Representative, have returned the VA Form 21-8940, despite the fact that both the Veteran and his Representative were made aware of the issue of developing the claim for a TDIU in the July 2019 Board hearing. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. Pursuant to 38 C.F.R. § 3.158, when evidence requested in connection with a claim for increase “is not furnished within 1 year after the date of request, the claim is considered abandoned.” 38 U.S.C. § 501; 38 C.F.R. § 3.158. A TDIU claim is a form of increased rating claim. See Hurd v. West, 13 Vet. App. 449 (2000) (recognizing that a TDIU claim was a form of increased rating claim by applying increased rating effective date regulatory provisions to a TDIU claim); Norris v. West, 12 Vet. App. 413 (1999) (recognizing that a claim for a TDIU is in essence a claim for an increased rating). Because the evidence of record is insufficient to decide the TDIU appeal, and the Veteran did not respond to the December 2019 letter from the AOJ asking him to complete and submit a VA Form 21-8940 in connection with the appeal, there remain no allegations of errors of fact or law for appellate consideration. The provisions regarding abandoned claims pursuant to 38 C.F.R. § 3.158(a) do not require notification of the denial. See Hurd v. West, 13 Vet. App. 449, 452 (2000) (concluding that 38 C.F.R. § 3.158 “requires no further action by the [RO] until a new claim is received” and that “[o]nce a claim has been abandoned under 38 C.F.R. § 3.158, the Secretary need not advise a claimant of his appellate rights.”); see also Morris v. Derwinski, 1 Vet. App. 260, 265 (concluding that even though an appellant may have been ignorant of the abandonment provisions of 38 C.F.R. § 3.158(a), he or she “is necessarily charged with knowledge of the regulation”). (Continued on next page.) The Board notes that while there was some evidence of limited employability in the medical records as cited above, there is no information concerning the Veteran’s educational history or his previous employers. In particular, the such information is necessary to adequately adjudicate the TDIU issue, especially since the Veteran has reported that he was retired. Moreover, the Veteran was notified that completion of the VA Form 21-8940 was needed to permit adjudication of his claim, as detailed above. Accordingly, as the Veteran’s TDIU claim has been abandoned, the appeal is dismissed. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Geary, 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.